author: Stern, P. J.,

text:
    Bridgeford v. Groh et ux.

      Hugh Roberts, for plaintiff.

      Allen Hunter White and Rowland C. Evans, Jr., for defendants.
    July 16, 1930.
   Stern, P. J.,

(1) The defendants’ motions for new trial and for judgment n. o. v.

These motions may be considered together. They are based upon two contentions of defendants. The first of such contentions is that the court erred in not admitting in evidence testimony to the effect that at the settlement at which the property was purchased by John J. Bridgeford from Mary McCIue Douglass, the purchaser deposited $80.36 in excess of the amount required to complete the settlement, and that the title company where the settlement was conducted paid this amount by a check to the order of Helen C. Bridgeford. The object of the offer was thereby to prove that Helen C. Bridgeford had put up the money for the settlement; in other words, that the property was being bought with her money and not with that of John J. Bridgeford. The trial judge ruled this testimony out on the ground that the mere fact that the check in question was made out by the title company to the order of Helen C. Bridgeford did not logically or relevantly prove that the purchase money had been put up by her or belonged to her. We do not know the circumstances under which the title company made out the check for this small amount to her order. It may have been by direction of John J. Bridgeford and intended by him as a gift to Helen C. Bridgeford, or it may have been merely that the latter asked the title company to make out the check to her order and they complied with that request.

The same criticism may be made of the other testimony offered by the defendants for the same purpose, and which was also rejected by the trial judge. The fact that Helen C. Bridgeford, a few months subsequent to the first transaction, took title to the adjoining property directly in her own name, the fact that when the properties were afterward sold Helen C. Bridgeford alone attended the settlement and received the check for the purchase money, the fact that John J. Bridgeford is alleged to have said to the defendants when they were negotiating for the purchase of the properties that Helen C. Bridge-ford was the owner, are all irrelevant and inadmissible as tending to show that Helen C. Bridgeford had put up the money for the purchase of the properties. This is especially true because, after the property in question in the present controversy was purchased, the- title was transferred from John J. Bridgeford to Helen C. Bridgeford, and when, some two years later, the properties were sold to the defendants, it would have been natural for John J. Bridgeford to say that the properties belonged to Helen C. Bridgeford, and equally natural that she should have attended the settlement and received the purchase money, inasmuch as she was admittedly the owner at that time. As to her taking title to the adjoining property directly in her own name, this would throw no light on the question as to her own money being used in the purchase of the property involved in the present case; if anything, it would indicate a difference in the two transactions, since in the case of the property here involved the title was taken originally in the name of John J. Bridgeford and transferred by him to her.

The second contention of the defendants is that by the agreement entered into between the plaintiff and her husband, John J. Bridgeford, in January, 1924, the plaintiff released and discharged John J. Bridgeford of and from any and all claims she might have against him, and it is claimed that this amounted to a release of her dower rights. The trial judge overruled this contention for several reasons. First, because it is questionable, to say the least, whether a release of her “claims” against him would amount to or would involve a release of her dower rights in property which he had aliened, which rights could scarcely be said to be a “claim” against him; second, because the release was to be avoided if the sum of $9000 was not deposited by John J. Bridgeford within ninety days from the date of the agreement (subsequently extended to a period of sixty days from May 24,1924), and there is no evidence that such deposit was ever made; and, third, because it would appear that the entire agreement was illegal and invalid, because the $9000 was to be deposited only if the plaintiff would proceed to obtain a divorce against John J. Bridgeford on or before Sept. 15, 1924 — a provision clearly beyond the pale of the law.

For these reasons, therefore, the court in banc, upon consideration of the record and of argument had thereon, discharges the defendants’ rule for a new trial and overrules the defendants’ motion for judgment n. o. v.

(2) The defendants’ motion for judgment n. o. v. on point reserved.

At the trial it was agreed between counsel that the verdict of the jury was to be merely as to whether or not the plaintiff was entitled to dower rights in the property, and that as to the form of the verdict and the quantum and nature of the right claimed by her the court should determine these matters as a question of law. The defendants’ contentions in regard to these matters were set forth in the ninth point for charge presented by them, and the court accordingly reserved that point for further consideration.

The fact that the husband, John J. Bridgeford, held title only for an instant of time before conveying it to Helen C. Bridgeford obviously did not deprive the plaintiff of her dower rights, for, as said by Blackstone (Lewis’s Edition, Book 2, page 594, * page 132) : “If the land abides in him [the husband] for the interval of but a single moment, it seems that the wife shall be endowed thereof,” and this is illustrated by a quaint case-in Wales, where a father and a son were hanged simultaneously, but the son was supposed to have survived the father by appearing to struggle longer, and, accordingly, it was held that he thereby became seised of an estate in fee by survivorship, in consequence of which seisin his widow obtained a verdict for her dower.

It is also established that in such a case as the present, where the husband aliened the land in his lifetime, the proper remedy for the wife to pursue is that adopted by her in the present case, namely, an action of dower: Gourley v. Kinley, 66 Pa. 270; Stockdale’s Estate, 29 Dist. R. 1013; Bridgeford v. Groh et ux., 9 D. & C. 5.

In <prder to determine the nature and extent of the plaintiff’s dower right, to which the jury has found that she is entitled, it is first necessary to consider whether or not that right is to be determined in accordance with the provisions of the Intestate Act of June 7, 1917, § 3, P. L. 429, 434.

. That the act applies to the case is undoubted, because the conveyance of the property by John J. Bridgeford was subsequent to the passage of the act: Merrick v. Du Pont, 285 Pa. 368. The defendants claim, however, that the provision of section 3 which covers the present case, namely, that “her [the wife’s] share in lands aliened by the husband in his lifetime, without her joining in the conveyance, shall be the same as her share in lands of which the husband died seised,” is unconstitutional, as not being included in the title of the act, namely: “An act relating to the descent and distribution of the real and personal property of persons dying intestate.” It is argued by the defendants that where a husband aliens land in his lifetime he does not own it at the time of his death, and, therefore, when section 3 purports to state the extent of the wife’s interest in such land, it is not dealing with property belonging to the intestate husband, but is regulating the extent of the wife’s own interest or property.

With this contention of the defendants the court cannot agree. The point has not been decided, although the same question is suggested in Stockdale’s Estate, supra, and there is a possible intimation bearing upon the subject in Merrick v. Du Pont, supra.

The title of the act is, as already stated, “An act relating to the descent and distribution of the real and personal property of persons dying intestate.”

The provision of section 3 concerning the wife’s share in lands aliened by her husband in his lifetime without her joining in the conveyance is one which fixes her dower right in such lands. Is such dower right one obtained by descent? According to Blackstone (Lewis’s Edition, Book 2, page 667, * page 201), there are two methods of acquiring title to real estate: “descent, where the title is vested in a man by the single operation of law; and purchase, where the title is vested in him by his own act or agreement.” It is obvious from these classic definitions that an estate of dower is a title gained by descent, because it accrues “by the single operation of law.” Indeed, the commentator to the text states in a note thereon that “Titles by curtesy and in dower, arising by operation of law upon the death of the wife or husband, as the case may be, seem to fall properly under the head of title by descent. See Co. Litt., 18 b, and n. 106. Chancellor Kent then quotes an authority in support of this proposition in the following language: ‘The learned author of the article Alienage, in the American Law Magazine for October, 1843, has referred to authorities in favor of the proposition, and particularly to the strong case of Pemberton v. Hicks, 1 Binney, 1.’ The ‘learned author’ above referred to is the Hon. George W. Biddle, of the Philadelphia Bar. See 4 Kent Com., 374.”

The case of Pemberton v. Hicks thus referred to contains the statement by Yeates, Jr. (page 16), that “it is fully settled that tenants by the curtesy and in dower come in by descent, merely by act of law: Co. Litt., 18 b.”

In Cooke v. Doron, 215 Pa. 393, it is held that title by curtesy is one by descent, and numerous text-book writers are cited to substantiate that statement not only in regard to curtesy but also as to titles in dower.

In the very recent case of Scaife v. McKee, 298 Pa. 33, it is definitely ruled that the Intestate Act of 1917 is not unconstitutional because of any defect in its title, arising from the inclusion in the act of provision for the husband’s curtesy. The court holds that curtesy is an estate by descent, and since the title of the act refers to the “descent” of property, it is sufficient to cover the provision as to curtesy.

It is true that a widow does not take her dower as an heir of the husband. But the point is, that a title may come by descent and yet not as by way of inheritance to an heir. All that is necessary is that it should vest by “the single operation of law.”

It would seem clear, therefore, that dower, being a title by descent, is properly included within the title “relating to the descent” of property of persons dying intestate. The confusion evidenced in the argument of defendants arises from the fact that they assume that the title indicates that the property, the descent of which is involved, must be owned by the person dying intestate at the time of his death. This same confusion would appear to exist in the dictum in Stockdale’s Estate, supra, where the learned writer of that opinion says (page 1021) that “it might be argued with effect that the failure of the title of the statute to reveal its intendment to govern real estate other than that of which decedents die seised renders the provisions as to such aliened lands unconstitutional and inoperative.” There is nothing, however, in the title of the act which indicates that it refers only to such real estate as that of which the decedent dies seised. If the title of the act were “An act relating to the descent and distribution of the real and personal property of persons dying intestate and of which they remained seised at the time of their death,” obviously the section here under consideration would not be included in such title. In the matter of dower, however, as already pointed out, the wife takes by descent from the person who owns the property [the husband], even though he has aliened it before his death. It is incorrect in this sense to say, as argued by the defendants, that it is her own property, and that it is acquired by her independently of her husband’s title. On the contrary, she obtains it only by and through his title; her right inchoate attaches to it when he purchases it and still exists in her when he aliens it, but that right becomes consummate only upon and by virtue of his death, and it is at the time of his death and by virtue of his death that she obtains by descent the consummate title to the dower right, even though he himself is then no longer seised of the title. It is only at the time of the husband’s death that her interest can be determined, since that interest depends upon the number of children surviving the husband. Indeed, even then she has no estate in the land upon which she can maintain an action of ejectment until the dower is actually assigned to her: Jones v. Hollopeter, 10 S. & R. 326. It is not the alienation of the property by the husband that vests in her any rights or affects her estate; on the contrary, there are only "two steps in the perfection of her title — the one when the property is purchased by the husband, and the other when the husband dies (followed by the assignment of the dower to her).

For these reasons, and especially in view of the legal principle that the title of an act should not be found to be defective unless it is clearly so, the court is of opinion that a provision fixing the amount of the interest or share of the wife’s statutory dower in lands aliened by her husband in his lifetime is properly included in and germane to a title which states the subject-matter of the act to be the “descent” of property.

If, as now held, the Intestate Act of 1917 governs the present controversy, and is constitutional as to the section in question, there remains to be considered the amount of the share or interest which the wife takes in accordance with the provisions of that act. It is stated therein that her share should be the same as her share in lands of which her husband died seised. In order to determine what the latter share is, we must refer back to section 1 (a), which provides that where the intestate leaves a spouse surviving and one child only (which is the present case), the spouse shall be entitled to one-half part of the real and personal estate. It, therefore, appears that the plaintiff is entitled to one-half part of the real estate in question. But the real estate in what form, in a value as of what time, and subject to what encumbrances?

All that section 3 provides is that her share shall be the same as her share in lands of which her husband died seised, and obviously the purpose of this clause is merely to provide that, whereas, before the act, the widow would have been entitled only to a one-third life interest in land aliened by her husband in his lifetime, she is thenceforth to be entitled to a one-third interest in fee simple (or, where there is only one child, to a one-half interest in fee simple), just as previous acts had provided for an estate of statutory dower in lands of which the husband died seised. There is nothing, however, which provides or indicates that the real estate aliened by her husband and in which her share is thus fixed shall be considered as of the same value, or as of the same physical condition, or subject to the same encumbrances, as it might or would have been had the husband continued to own the property and been seised thereof at the time of his death. When it is remembered, as will be presently pointed out, that there were certain important common-law limitations and qualifications of the widow’s dower right in the case of land aliened by the husband in his lifetime, it is not believed that section 3 is to be construed as intending to sweep away all such limitations and qualifications and as not only substituting for the situation as it existed at common law a difference in the share which the wife takes, but also abolishing all the previously existing rules of dower appertaining thereto. On the contrary, it is thought that, as above indicated, it was meant merely to change the share or proportionate interest which she was to receive in such property. This would seem to be the correct viewpoint, especially in view of the fact that, notwithstanding the numerous statutes which have been passed giving the widow a statutory right to a part of her husband’s real estate in lieu of common-law dower, it has always been held that the new interest thus created is itself in the nature of dower, merely amounting to an enlargement or modification of the dower interest, and that the widow continues to take thereunder as doweress and not by inheritance, as do the heirs of the husband. An interesting decision of this nature is that of Schwarz v. Schwarz, 3 Erie Co. L. J. 254. See, also, 19 Corpus Juris, 459, § 6.

It is well settled under the common law of Pennsylvania that in such case the widow shall be endowed according to the value of the land at the time her dower shall be assigned to her. If between the time the husband aliened the land and the time of the assignment of the dower the land has increased in value the widow receives the benefit of such increase; and, on the other hand, if there has been a depreciation in value during that period, it must be borne by her. But the widow can take no advantage of improvements of any kind made on the land by the purchaser subsequently to the husband’s alienation of the property; and, indeed, if the purchaser negligently allows the buildings which existed on the land at the time of his purchase to fall into ruin, or even wilfully destroys them, nevertheless, the widow can have no remedy in that respect: Winder v. Little, 1 Yeates, 152; Thompson v. Morrow, 5 S. & R. 289; Shirtz v. Shirtz, 5 Watts, 255; Gannon v. Widman, 3 Dist. R. 835; Shupe v. Rainey, 255 Pa. 432.

Applying these principles to the present case, the plaintiff would be entitled to her dower interest in the land itself (as distinguished from the buildings and improvements erected thereon) as of the time when the dower is now, assigned to her. She has no rights in regard to the garage building erected by the defendants since their purchase of the property, neither has she any remedy or redress by reason of their having torn down the building which was on the land at the time when the plaintiff’s husband conveyed the property to Helen C. Bridgeford and the latter, in turn, to the defendants.

In regard to the encumbrances on the property, it appears that when the plaintiff’s husband purchased the land he bought it subject to a then existing mortgage of $4000. He then placed an additional $3000 mortgage on the property, and when he conveyed it to Helen C. Bridgeford it was thus subject to mortgages aggregating $7000. When the plaintiff’s husband and Helen C. Bridgeford conveyed the premises to the defendants, these mortgages were paid off and a new mortgage of $23,000 placed on the property by the defendants. In regard to these matters, it is clear that the mortgages in the sum of $7000 which were on the land at the time the husband aliened it were then paramount to the plaintiff’s right of dower. It is equally clear that her right is not impaired by nor subordinate to the new mortgage of $23,000 placed upon the land by the defendants after their purchase of the property. The only real question in the case is with regard to the situation arising from the fact that the mortgages of $7000 were paid off when the defendants purchased the property. As to this circumstance, the law seems to be that “where the heir or some other person having the right to redeem has redeemed land from a mortgage which was superior to the dower interest of the widow of the mortgagor, the widow must contribute her ratable proportion of the amount paid before she can be endowed of any portion of the mortgaged lands, and if she fails to do so, she is entitled to dower in the equity of redemption only:” 19 Corpus Juris, 488, •§ 92. It thus appears that the plaintiff’s right to dower in the present case is subject to the mortgages of $7000, even though they have been paid off since the husband aliened the property to Helen C. Bridgeford, and she must either take her dower subject to said amount of mortgages or, which amounts to the same thing, must contribute her ratable proportion to the amount thereof.

The plaintiff also claims damages for detention, such damages ordinarily consisting of the rents and mesne profits which would have accrued to her from her estate in dower from and after the time of her husband’s death. In the present case, however, it would seem that she is not entitled to such damages. At common law a widow was not entitled to damages for detention in an action of dower. By the Statute of Merton, 20 Hen. Ill, c. 1, it was provided that the widow should receive the one-third of the annual value of the land as damages for the period of detention, but it has been held that the Statute of Merton applies only where the husband died seised of the land, and is not applicable where he aliened the property in his lifetime. Nor can she recover costs, because these are awardable to the widow only by virtue of the Statute of Gloucester, 6 Edw. I, c. 1, which provides for them only in cases where damages are recoverable: Sharp v. Pettit, 3 Yeates, 38; Barnet v. Barnet, 15 S. & R. 72; Benner v. Evans, 3 P. & W. 454; Seaton v. Jamison, 7 Watts, 533; Conklin v. Bush, 8 Pa. 514; Gannon v. Widman, 3 Dist. R. 835. It is to be noted in the present case that there was no evidence of demand for the assignment of dower having been made before the bringing of suit, and the defendants have pleaded tout temps prist. Under such circumstances particularly, costs are not recoverable: Gannon v. Widman, 3 Dist. R. 835. The Intestate Act of 1917 contains no provision in regard to the subject of damages or costs, and, therefore, leaves the rights of the widow in respect thereto as at common law. In the present action, therefore, the plaintiff, as appears from the authorities cited, is not entitled either to damages for detention or costs.

The defendants have urged that, since the plaintiff’s husband conveyed title to Helen C. Bridgeford by deed of warranty covenanting and warranting a good title to the grantee, and since a similar deed of warranty was given by the plaintiff’s husband and Helen C. Bridgeford to the defendants, the latter would have a right of action on such warranty against the estate of the plaintiff’s husband, and such liability would exactly equal the extent of the pláintiff’s dower rights. With this contention, however, the court is not concerned in the present case, which is “strictly a real action:” Jones v. Patterson, 12 Pa. 149. We have no evidence in regard to the estate of the plaintiff’s husband, and as to whether it contains assets from which the defendants can recover on their alleged claim under their deed of warranty. Certainly such a claim cannot be used as a defense or a set-off to an action by the wife to recover her dower interest.

Defendants also have argued the question as to the nature of the remedy which the plaintiff can obtain in execution on any judgment which she may recover in the present case. They point out that no money judgment can be awarded to the plaintiff, and that a writ of seisin is inapplicable, since the plaintiff cannot, under the circumstances, have her dower assigned to her by metes and bounds. This is true because of the complications resulting from the fact that the plaintiff, for reasons already set forth, is not entitled to an interest in the improvements now existing on the land, and, on the other hand, is subordinate to mortgages previously encumbering the property but now paid off. The cases hold that, under such circumstances, some other equitable method of handling the situation must be employed. Prior to the Intestate Act of 1917, when the wife’s dower interest was an estate in one-third of the property for life only, one of the methods employed was to decree to her the payment of an annual sum, which was made to constitute a charge on the land: Gannon v. Widman, 3 Dist. R. 835. While the jury in a dower action was not allowed in its verdict to find the value of the land (Leineweaver v. Stoever, 17 S. & R. 297), there is authority to the effect that, where necessary for practicability, there may be an inquest made by commissioners or otherwise to determine the absolute value of the wife’s dower interest, which shall thereupon be charged upon the land as a lien. In this case such lien would, ■of course, be prior in security to the mortgage placed upon the property by the defendants, that mortgage being subordinate to the plaintiff’s dower rights in the property. See Shupe v. Rainey, 255 Pa. 432 (more particularly the cases cited therein, pages 441-443) ; also, 19 Corpus Juris, 580, 581, § 374, and, in general, pages 584-588, §,§ 387-392. However, this question does not arise in the present stage of the controversy, and is to be determined when the plaintiff shall seek execution on the judgment herein entered.

For the reasons thus stated, the court overrules the defendants’ motion for judgment on the point reserved (defendants’ ninth point for charge), and, in accordance with the verdict of the jury and the agreement of counsel that the court should determine the nature and extent of the plaintiff’s dower right, directs that judgment be entered that the plaintiff recover against the defendants, as tenants of the freehold, a one-half absolute or fee simple interest in the premises for which the action in dower is brought, according to the value of the land at the time the plaintiff’s interest is assigned to her, but without any benefit to her of improvements which have been erected thereon since the alienation of the property by her husband, and less her proportionate part of the mortgages previously encumbering the property in the amount of $7000, and without any damages, mesne profits or costs.


source: Caselaw Access Project

author: Coughlin, J.,

license: Public Domain

text:
    Greene v. Brandt.

      H. H. Weintraub, for plaintiff.
    Feb. 10, 1930.
   Coughlin, J.,

Jacob Greene, of the City of New York, State of New York, brings this bill against Melvin Brandt, of the City of Wilkes-Barre, County of Luzerne, this state, seeking to annul the marriage of his daughter, Dorothy Greene, eighteen years, of age.

The bill was duly served upon defendant, who neither entered an appearance nor made answer thereto. Plaintiff alleges that by various promises, inducements and enticements the defendant persuaded his daughter to leave her home and habitation and enter into a marriage contract between the defendant and said minor daughter of plaintiff, and that at the instance of the defendant said plaintiff’s daughter fraudulently represented her age as over twenty-one years, thereby procuring a license without plaintiff consenting, followed by marriage. Immediately thereafter, said minor daughter returned to the domicile of her parents at their instance.

The plaintiff avers that he has suffered an irreparable wrong and injury and prays for equitable relief in declaring the marriage null and void.

Facts.

I. On Dec. 22,1927, Dorothy Greene, minor daughter of plaintiff, residing in the City of New York, came to the City of Wilkes-Barre, and with Melvin Brandt, did, on Dec. 22nd, obtain a marriage license, without consent of parents, and was immediately married to the defendant, Melvin Brandt, she being then eighteen years of age.

2. Immediately upon the performance of the marriage ceremony, the said Dorothy Greene and the defendant returned to the home of plaintiff. Said Dorothy Greene, minor daughter, remained, and said defendant, having been ordered to leave, departed.

3. The plaintiff and defendant did not cohabit together, but were thus immediately separated and have not since lived as husband and wife.

Discussion.

This matter having come before us at the recent trial of equity cases, testimony was taken establishing the aforesaid facts. No brief has been filed.

The Act of June 23, 1885, P. L. 146, provides for the issuing of a marriage license prior to marriage, and provides for the consent of guardians or parents where parties are under twenty-one years of age. This act and the amendments thereto provide that the age of the parties and the consent of parents or guardians of such as are under the full age of twenty-one years shall be inquired into by the clerk or other officer upon whom that duty is imposed and that he shall grant a license if satisfied that there is no objection to the contemplated marriage.

It would appear under these statutes that such licenses may be granted to those under twenty-one years of age only in the event that the consent of parent or guardian is obtained. The Act of March 24, 1927, P. L. 64, provides that, after Oct. 1, 1927, no licenses to marry shall issue if either applicant therefor be under the age of sixteen years. This would indicate that even though parent or guardian consented, no license to marry could issue to one under that age. The act, however, provides that a judge of the orphans’ court shall have discretion to authorize a license to be issued by the clerk of the orphans’ court in special cases where one or both persons are under the age of sixteen years.

In the case at bar, complainant seeks to annul a marriage contract to which he was not a contracting party and which contract differs from the ordinary contract in that the' Commonwealth is peculiarly concerned therewith. The marriage relationship is more than just a contract; it is a civil status, and once entered into can be dissolved only for the causes recognized by the State in its statutes. None of these causes is alleged in the present proceeding.

The fraud set up in this case may in theory be the loss in wages to which the parent is entitled from said minor child or the fraud of misrepresenting her age.

However, so far as we have been able to ascertain, there is no provision in the law of Pennsylvania for declaring a marriage void on the ground of the minority of the parties to the marriage. While the requirement of the law is that a minor shall not be granted a certificate to marry without the consent of the parent or guardian, the effect of the law is not to render a marriage void which is performed contrary to this requirement: Seibert v. Seibert, 3 D. & C. 142.

It is true that no justice of the peace or minister may marry a minor without the consent of the parent, but that does not affect the validity of the marriage itself: Beelman v. Roush, 26 Pa. 509. The issuing of a license under such circumstances may be visited with the penalty provided by law, but the marriage is not thereby avoided. While a penalty is imposed upon one who violates the regulatory statute, nowhere in the act is it stated that such a marriage shall be void. In the absence of a positive statute declaring that all marriages not celebrated in the manner therein prescribed shall be void, any marriage regularly made according to the common law, without observing the ‘ statutory regulations, is a valid marriage: Meister v. Moore, 96 U. S. 76. It has become .established in authority that a marriage good at the common law is good, notwithstanding the existence of any statute on the subject, unless the statute contains express words of nullity: Bieseeker’s Estate, 7 Dist. R. 70. Acts which provide for the obtaining of licenses are directory and not a declaration of what shall constitute a legal marriage and what not. It does not follow that a marriage contracted in any other form is void: Rodebaugh v. Sanks, 2 Watts, 9. Also, Helffenstein v. Thomas, 5 Rawle, 209.

It' is alleged that cohabitation did not follow, but “consensus, non concubitus, facit matrimonirnn.”

Where there is no statute fixing the age at which persons are capable of entering into the marriage relation, the common law, fixing the ages at fourteen and twelve, respectively, governs. But the regulatory statutes providing for consent of parent before granting the license do not authorize the annulment of a marriage entered into by a minor above the limitations fixed by the common law or statute: Browning v. Browning, 130 Pac. Repr. 852; Annotations 22 L. R. A. (N. S.) 1206; Annotations L. R. A., 1916 C, 741; 18 Ruling Case Law, Marriage, §§ 24, 29, 70.

We are mindful of the case of Hullahan et al. v. Paritz, 24 Luzerne Legal Reg. 183, wherein the court said: “It must have been obvious to the license clerk and to the minister that this girl was years under age, and upon them rested the solemn responsibility, for the welfare of all concerned, to probe the transaction with sharpest scrutiny.” There is nothing in the present case to show any deplorable lack of care or obvious facts showing disregard of solemn responsibility.

Therefore, we conclude as a matter of law that the court is without power to grant the relief prayed for and that the bill should be dismissed.

Prayer of the petitioner is denied and the bill dismissed.

From Frank P. Slattery, Wilkes-Barre, Pa.


author: MaoDade, J.,

text:
    Commonwealth v. Bowers.

      Thomas O. Haydock, for petitioner.

      William J. MacCartér, District Attorney, and William B. Toal, Assistant District Attorney, for Commonwealth.
    April 14, 1930.
   MaoDade, J.,

— The petition of the Commercial Credit Company filed in the above-entitled case contained a prayer for the return of an automobile, which is owned, it is alleged, by it, and is a Chrysler 70 coupé, serial No. PY-46250, motor No. 1830684, the said petitioner being a Delaware corporation and engaged in the finance business. The petition was filed in accordance with the provisions of paragraph D, clause VI, section 11, of the Enforcement Act of March 27, 1923, P. L. 34. The said automobile was confiscated by the District Attorney of Delaware County for the reason that said coupé was used in the illegal transportation of intoxicating liquor.

This section provides as follows: “Any person claiming the ownership of, or right of possession to, any intoxicating liquor, vehicle, team, conveyance, craft or other property, the disposition of which is provided for in this section, may, at any time prior to the sale thereof, present his- petition to the court, alleging his lawful ownership thereof or right of possession thereto, and if, upon public hearing thereon, due notice of which having been given to the district attorney, such.claimant shall prove by competent evidence to the satisfaction of the court that said intoxicating liquor, vehicle, team, conveyance, craft or property was lawfully acquired, possessed and used by him, or if it appearing that the property was unlawfully used by a person other than the claimant, he shall prove that such unlawful use was without his knowledge or consent, then the court may order the same returned to said claimant, otherwise it shall be destroyed or sold (as the case may be) as hereinabove provided.”

Proceedings under the above section are for the return of the property before any sale has been had and should be distinguished from the proceedings under paragraph B, clause ill, section 11, of the same act where the proceedings are for the proceeds of the sale.

Paragraph B, clause in, of section 11, provides as follows: “In the event that any such vehicle, team, conveyance or craft is, when so seized, held and possessed under a bailment lease or contract and the legal title thereto is in another who shall prove that the unlawful use for which the same was seized was without his knowledge or consent, then the claim of the bailor for money due under said bailment lease or contract shall attach to and be paid out of the funds derived from said sale after payment of costs.”

The case of Com. v. One Nash Roadster, 91 Pa. Superior Ct. 600, decided that, under section 11, clause in, paragraph B, a conditional vendor was not a bailor, and, therefore, was not entitled to claim the proceeds under this section.

Petitioner claims, however, that this case did not have any bearing whatsoever on the proceedings to be taken under section 11, paragraph D, clause VI, under which section the petition in this case has been filed.

The petitioner, Commercial Credit Company, has presented its petition to the court, alleging its lawful ownership of the automobile in question; the district attorney was given due notice of the filing of the petition, a copy having been served on him. The petitioner is prepared upon further hearing to prove by competent evidence that “the said automobile was lawfully acquired and that if the said automobile were unlawfully used by the conditional vendee, the said unlawful use was without the knowledge or consent of your petitioner.”

It would be a vain thing to proceed to a further hearing in this matter, for the case is complete upon the pleadings, and due argument and briefs have been presented to the court by the respective parties for our consideration, for attached to the petition of the claimant is the agreement between B. B. Bowers and Consolidated Auto Sales Co., Inc., which from its terms is a conditional sales agreement, said conditional sales agreement having been assigned to Commercial Credit Company, the claimant in this petition, a copy of said assignment being also attached to said petition.

The section of the act of assembly above referred to (paragraph D, clause VI) was intended to protect a person claiming the ownership of and right of possession to a motor vehicle and a person capable of proving said ownership and said right to possession by a proper hearing before a court of competent jurisdiction. The claimant in the case at bar has no standing before the court, for the reason that it cannot claim ownership or right of possession to the said motor vehicle in question because of the fact that the defendant, B. B. Bowers, held title to said motor vehicle under a conditional sales agreement and not under a bailment lease. The only claim that the said claimant, Commercial Credit Company, can have is as the holder of a chattel mortgage or lien as security for the sum or sums of money due and left unpaid under the terms of the said conditional sales agreement.

In the case at bar, the title to the said motor vehicle passed to the said B. B. Bowers immediately upon the execution of the said conditional sales agreement and delivery of the said motor vehicle to the said B. B. Bowers.

In the case of Com. v. One Nash Roadster, 9 D. & C. 75 (1927), Biddle, P. J., in construing the provisions of paragraph B, clause ill, of section 11 of the Act of March 27, 1923, distinguished between a conditional sales contract and a bailment lease and held that a conditional vendor had no right to participate under the conditions of said paragraph in the proceeds of the sale of a car that had been forfeited and condemned under the provisions of the Enforcement Act. Most assuredly, if the claimant had no right to participate in the funds raised by a public sale of the motor vehicle in question, then it had no right to assert any title in the motor vehicle prior to said sale. See Com. v. One Nash Roadster, 91 Pa. Superior Ct. 600, wherein the court held that an automobile sold under a conditional sale may be seized for use in the transportation of intoxicating liquor and the vendor has no rights under section 11, clause III, of the Act of March 27, 1923, P. L. 34.

The claimant in this case prays for the return of the car under clause VI, paragraph D, of the Enforcement Act of March 27, 1923, section 11, but if the said claimant can have no rights to the distribution of the proceeds after a sale, it can have no rights in the chattel itself before a sale takes place. The section of the act which it is endeavoring to invoke on its behalf is of no avail to it, for the reason that it cannot assert or prove ownership to the motor vehicle in question as required by said section, nor can it prove to the satisfaction of a court of competent jurisdiction a right of possession to said motor vehicle.

See, also, the following: Com. v. One 5-Passenger Overland Sedan, 90 Pa. Superior Ct. 376; Com. v. One Buick Roadster, 88 Pa. Superior Ct. 24; Com. v. One Studebaker Coupé, 86 Pa. Superior Ct. 532; Com. v. One Ford Truck, 8 D. & C. 491. Undoubtedly a motor vehicle, the custody of which is transferred to a third party under the terms of a bailment lease and used for an unlawful purpose, may be claimed by an innocent bailor in accordance with the provisions of the aforesaid Enforcement Act, and the intendment of the Legislature was not to interfere drastically with the contracts of bailment which have been recognized by the law of the Commonwealth of Pennsylvania for a long time. However, the Legislature did not contemplate the protection of every possible class of creditor where a chattel was seized and forfeited for a violation of the Enforcement Act. The Legislature has extended the arm of its protection to an innocent bailor, but it has not gone so far as to protect a vendor under a conditional sales agreement. We cannot construe a conditional sales agreement as anything but what it is, appearing from the face of the instrument itself. Thé intent of the parties to said conditional sales agreement did not contemplate the return of said motor vehicle to the vendor as is contemplated in the ordinary bailment lease. Title passed to the vendee immediately and the vendor could not take advantage of any of the provisions for its protection with respect to repossessing the said motor vehicle unless and until a default occurred in the provisions of said conditional sales agreement. Unfortunately for the claimant in this case, the Commonwealth of Pennsylvania seized said motor vehicle for a violation of the law and now the rights of the Commonwealth of Pennsylvania rise paramount to any rights that the claimant may have under the terms of said conditional sales agreement.

Therefore, we make the following

Order.

And now, April 14, 1930, the above matter coming on to be heard by the court in banc upon a petition of the Commercial Credit Company and rule to show cause why an automobile should not be returned, together with oral arguments and briefs, after due consideration thereof, the court doth order and decree that the said rule to show cause why an automobile should not be returned to the Commercial Credit Company be and is hereby discharged, and the petition be and is hereby dismissed, with costs upon the petitioner, the said Commercial Credit Company.


author: Campbell, P. J.,

text:
    Gilkey v. Montag.

      W. H. Martin, for plaintiff.

      John H. Wilson and Zeno F. Henninger, for defendant and respondent.

      April 5, 1930.
   Campbell, P. J.,

— This is a proceeding on a writ of scire facias under the Act of April 10, 1929, P. L. 479. Plaintiff has pending an action of trespass against defendant to recover damages for personal injuries incurred in an automobile accident, alleging that defendant’s negligence was the proximate cause of her injuries.

The statement of claim sets forth that plaintiff was a guest of one Charlotte R. Marburger in the latter’s automobile being operated by her; that defendant, operating his automobile in a negligent, etc., manner upon a highway in a direction opposite to the direction of the Marburger car, while passing several cars going in the same direction as his (defendant’s) car, ran onto his left side of the road and directly towards the Marburger car; that in order to avoid a collision with defendant’s car, Mrs. Marburger was forced off the improved portion of the highway, striking a telephone pole located along the side thereof; and that as a result thereof plaintiff was injured. No affidavit of defense has been filed. Defendant filed his prsecipe directing the prothonotary to issue a writ of scire facias under the Act of 1929 “to bring upon the record, as additional defendant, Charlotte R. Marburger, whom the defendant alleges is severally liable with him, if any liability exists to the plaintiff, for the cause of action declared on in this case, to the extent of the whole of the amount which may be recovered therein against him, for the reason that he is not liable to the plaintiff in any event; if any liability exists, it is the liability of Charlotte R. Marburger, for the reason that her neglect caused the accident complained of by the plaintiff in this proceedings and for the reason Charlotte R. Marburger is thus liable.”

The writ issued in due course and was served upon respondent, who answered, denying all liability for the cause of action declared upon either to plaintiff or defendant; admitting that she operated the car in which plaintiff was riding at the time of the accident; affirming that her car was operated in a lawful, peaceable and proper manner; and alleging that the accident and resultant injuries complained of by plaintiff were caused wholly by the negligence of defendant, and setting forth the manner of the happening of the accident substantially as it is set out in the statement of claim. No replication has been filed.

The Act of 1929 is as follows:

“An Act to regulate procedure where a defendant desires to have joined as additional defendants persons whom he alleges are liable over to him, or jointly or severally liable with him, for the cause of action declared on.

“Section 1. Be it enacted, etc., that any defendant, named in any action, may sue out, as of course, a writ of scire facias to bring upon the record as an additional defendant any other person alleged to be liable over to him for the cause of action declared on, or jointly or severally liable therefor with him, with the same force and effect as if such other had been originally sued, and such suit shall continue, both before and after judgment, according to equitable principles, although at common law, or under existing statutes, the plaintiff could not properly have joined all such parties as defendants.”

This act was passed by the Legislature at the instance of the Pennsylvania Bar Association, having been drawn and presented to that association by its Civil Law Committee in a report which states that “the statute recommended . . . is purely procedural and will have no effect upon existing rules of substantive law. Its object is to enable a defendant to join in any action all parties who are liable to or with him on that cause of action. ... In tort, it would cover all cases where indemnity or contribution is allowed, but, being procedural, would not, of itself, extend the effect of the latter doctrine” (34th Annual Report of Pennsylvania Bar Association, pages 42, 43). “In construing it [Act of April 10,1929, P. L. 479], two things are plainly apparent: (1) The act is a remedial one. Its purpose is to avoid a multiplicity of suits; to compel every interested person to appear and defend the action by plaintiff; and to save the original defendant from possible harm resulting from loss of evidence, as might result if compelled to await the end of the suit before proceeding against those who were primarily liable in whole or in part. Hence, the statute is to be liberally construed to advance the legislative purpose [citing cases]. (2) Nothing in the act shows the slightest intention to affect plaintiffs in such suits. Consequently, the adding of additional defendants will give no higher right to plaintiffs than they had before. As to them, the action proceeds against the original defendant only, exactly as it would have done if the additional defendants had not been named. . . . The statute says it applies to ‘any action,’ and this, of course, includes actions of trespass:” Vinnacombe v. Philadelphia et al., 297 Pa. 564, 569.

It follows from the statute itself and the above-stated interpretation that two questions are here involved: (1) The sufficiency of the procedure followed; and (2) the liability of the additional defendant to the original defendant in the event of a judgment against the latter on the cause of action declared upon; a liability by the former either over to the latter or jointly or severally with him.

1. The act is not limited to actions in which the original defendant confesses a liability, but requires him to allege only that the additional defendant is liable over to him or jointly or severally liable with him, which, of course, means in the event that a judgment is recovered against him. In the Vinnacombe case, the Supreme Court has set out a form of prsscipe for the sci. fa. to be followed, including a statement of the reason why defendant claims that the additional defendant is thus liable, and gives an illustration for several types of cases, adding that “the prsecipe at this point must set forth the actual facts upon which defendant bases his claim regarding the liability of the additional defendant or defendants to him.” These are rules laid down for our guidance which must be followed.

In the prgeeipe for the sd. fa. in this case, the reason why defendant claims that the additional defendant is thus liable is defective. It states the reason to be that (a) defendant is not liable to the plaintiff in any event; and (b) if any liability exists, it is that of Charlotte R. Marburger, for the reason that her neglect caused the accident. Inasmuch as the adding of Mrs. Marburger as a defendant “will give no higher right to plaintiff (s) than he (they) had before, and the action proceeds against [Montag] only, exactly as it would have done if the additional defendants (s) had not been named” (Vinnacombe v. Philadelphia, supra), the non-liability of Montag would defeat any rights in this action to recover from Marburger. The prsecipe, while containing the allegation or conclusion that the additional defendant is severally liable with the original defendant as to the whole amount of the claim, gives no reason which would tend to support the allegation. Indeed, the reasons given negative the allegation. For this reason the application of the original defendant must be denied. He has failed to make out a prima fade case.

2. This is not a case of alleged primary liability of the additional defendant, such as in the Vinnacombe case, nor of the application of the doctrine of respondeat superior, as in the case of Goldman v. Mitchell-Fletcher Co., infra; Armstrong County v. Clarion County, infra, and Horbach’s Admin’rs v. Elder, infra; nor of an alleged liability on a contract, but is based upon the right of enforcing contribution between two joint tortfeasors on a judgment entered upon a verdict or verdicts based upon a finding that the personal negligence of each contributed to the injury suffered.

The plaintiff had a right to sue either Montag or Marburger individually or to sue them jointly. If in the action brought, as it now stands, a judgment should be obtained against Montag and he would have the right to require contribution from Marburger on proof that her negligence contributed to the accident, then he would have a right to bring her in as an additional defendant through this scire facias proceedings. If he would not have such right of enforcing contribution upon proof of her contributing negligence, then his right to bring her upon the record as a defendant in these proceedings must be denied.

In Goldman v. Mitchell-Fletcher Co. and Phila. R. T. Co., 285 Pa. 116 and 288 Pa. 102, an action in trespass for personal injuries, a verdict was returned and judgment entered on proof of injuries to minor plaintiff while a passenger on a street car of the latter defendant operated by its servant, resulting from a collision between the street car and a wagon drawn by a team of horses owned by the first named defendant and driven by its servant. In Goldman v. Mitchell-Fletcher Co., 292 Pa. 354, the right of contribution between the two defendants in the case last above cited was sustained under its facts, but at the end of the opinion the court made it clear that it was not laying down a general rule that contribution exists as between joint tortfeasors in negligence cases, but was leaving other cases to be decided as they might arise.

The rule that there can be no contribution between wrongdoers has many exceptions, and the case of Goldman v. Mitchell-Fletcher Co., supra, is authority that an exception exists as between tortfeasors where the tort is due to negligence, and the contribution is demanded on the principle of respondeat superior. Such were the principles involved in the two Pennsylvania cases cited as sustaining the judgment in the Goldman case, i. e., Armstrong County v. Clarion County, 66 Pa. 218, and Horbach’s Admin’rs v. Elder, 18 Pa. 33, the latter of which also involved the exception to the general rule that contribution may be enforced between partners for the tort of their servant.

The cases from other jurisdictions are in irreconcilable conflict as to whether or not the general rule applies in negligence cases, but the Goldman case and the other two Pennsylvania cases above cited are authority that the general rule will not necessarily apply because the case is one of negligence, but that under some circumstances a negligence case comes within the exception.

In the Goldman case many rules are cited with approval from text-books and cited cases for determining whether or not the rule applies. Those having a bearing on this case may be summarized as follows: (A)' The rule applies and there can be no contribution: (a) In cases where there has been an intentional violation of law or the wrongdoer knew, or is to be presumed to have known, that the act was unlawful or the circumstances were such as to render ignorance of the illegality inexcusable (292 Pa. 358, 359, 362); (b) it applies only between parties who, by concert of action, intentionally committed the wrong complained of (page 363); (c) the act must be malum in se, that is, actual fraud or voluntary wrong (page 358); (d) the test is whether plaintiff at the time of the commission of the act knew that it was wrongful (page 365); (&) it applies only to cases where persons have engaged together in doing wantonly and knowingly a wrong (page 365).

(B) The rule does not apply and contribution may be enforced: (a) in cases of quasi torts not involving moral turpitude or personal fault or knowingly a wrong (page 365); (b) where the acts are not obviously unlawful or the parties are not presumed to have known that they were doing any wrong (page 358) ; (c) where there is not personal participation, personal culpability or-personal knowledge, but the liability is one of law growing out of the relationship (page 358) ; (d) even though the person has actually participated in the wrong, if he is not presumed to have known that he was doing a wrongful act, or if the act was not in itself illegal (page 359); (e) where the persons do not by concert of action intentionally commit the wrong (page 363) ; (f) the rule does not apply to torts which are the result of mere negligence in carrying on a lawful business (page 365); (g) it is immaterial whether the negligence was of the two defendants personally or through their agent (citing case of Ankeny v. Moffat [37 Minn. 109], in which the negligence was that of the joint contractor of the defendants involving no illegal act), since in neither one was there any intentional wrong; in the one case it would be mere negligence in doing a lawful act, and in the other case there would be no personal fault whatever on their part (page 365).

These rules are somewhat conflicting when applied to the facts of this case. What are its facts? While in the determination of the right to bring in an additional defendant the facts of the statement of claim are not to be taken as verity against the original defendant, yet a prima facie case of his right to require contribution should appear from the pleadings. In this case, in the absence of an affidavit of defense or of any statement in the praecipe for sci. fa. which would even tend to show a different state of facts than those set up in the statement of claim, it may be assumed that the defendant, Montag, in overtaking several cars, turned out to pass them and in so doing met the Mar-burger car and the accident followed from that situation. Montag was bound by the provisions of the law which prohibited the passing of overtaken vehicles unless he had a dear view of the left side of the road, free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be made in safety, and if he was approaching a curve or the crest of a grade, unless he had a clear view, free of such traffic, for 300 feet ahead: Act of May 1, 1929, § 1008 (a) and (b), P. L. 905. Under the situation set forth in the statement of claim, with no other facts set up anywhere on the record, Montag’s act was more than negligence; it was unlawful or illegal, and he is presumed to have had knowledge thereof, and the act was one of voluntary wrong. There was personal participation, personal culpability and personal knowledge. “The excessive rate of speed at which an automobile is driven is a product of the will of its driver and not the result of mere inattention or negligence:” Com. v. Coccodralli, 74 Pa. Superior Ct. 324, 327. With greater force does this conclusion apply to the passing of overtaken vehicles, which is fraught with exceedingly greater danger to others who are upon the highway than is operating at excessive speed. The original defendant, Montag, has failed to make out a prima facie case sustaining a right in him to enforce contribution from Marburger (whom he seeks to bring in upon this record as an additional defendant) in the event of his suffering a judgment against him in this case.

In other jurisdictions we find sustaining the right of contribution in negligence cases sueh as Mitchell v. Raymond (Wis., 1923), 195 N. W. Repr. 855 (collision between two automobiles, each operated by one of the two defendants; injury to guest); Underwriters v. Smith (Minn., 1926), 208 N. W. Repr. 13 (same situation as in the case just cited) ; Hobbs v. Hurley (Me., 1918), 104 Atl. Repr. 815 (automobile accident; involves doctrine of respondeat superior); First Nat. Bank v. Avery Planter Co. (Neb.), 95 N. W. Repr. 622; 111 Am. St. Reps. 541 (attachment); Acheson v. Miller (Ohio), 59 Am. Dec. 663 (attachment); Furbeck v. Gevurtz (Ore., 1914), 143 Pac. Repr. 654 (building material on street permitted by ordinance, concurrent negligence in manner of placement and of operation of wagon of another injured the plaintiff; contribution allowed because act not intentional and no presumption of knowledge of illegality).

Cases denying the right are Union Stock Yards Co. v. Chicago, etc., R. R. Co. (1905), 196 U. S. 217 (defendant delivered defective car to plaintiff which failed to inspect); Adams v. White Bus Line (Cal., 1921), 195 Pac. Repr. 389; Wise v. Berger (Conn., 1925), 130 Atl. Repr. 76 (collision of automobiles) ; Central, etc., R. R. Co. v. Macon, etc., Co. (Ga.), 71 S. E. Repr. 1076 (concurrent negligence of two corporations resulting in death of employee of plaintiff by electric shock from wire of defendant); Chicago Rys. Co. v. Conway Co., 219 Ill. App. 220; Petroyeanis v. Pirola, 205 Ill. App. 310; Illinois Central R. R. Co. v. Louisville Bridge Co. (Ky., 1916), 188 S. W. Repr. 476; Churchill v. Holt, 131 Mass. 67, cited in 2 Ann. Cases, 529 (plaintiff left hatchway to his lot unguarded; danger increased by defendant’s servant) ; Gale Lumber Co. v. Bush (Mass., 1917), 116 N. E. Repr. 480; Village of Portland v. Citizens’ Telephone Co. (Mich., 1919), 173 N. W. Repr. 382 (defendant’s wires sagged and wore off insulation on plaintiff’s electric wires, resulting in accident); Flenner v. Southwest Mo. R. R. Co. (Mo., 1927), 290 S. W. Repr. 78 (collision of train and motor bus); Torpy v. Johnson (Neb., 1895), 62 N. W. Repr. 253 (furnishing liquor by licensed saloonkeeper to habitual drunkard; test is whether plaintiff knew the act to be unlawful); White v. Carolina Realty Co. (N. C., 1921), 109 S. E. Repr. 564 (automobile collision injuring guest); Public Service Ry. Co. v. Matteucci (N. J., 1928), 143 Atl. Repr. 221; Fedden v. Brooklyn Eastern Dist. Terminal, 199 N. Y. Supp. 9, 204 N. Y. (App. Div) 741) ; Consol. Kansas City Smelting Co. v. Binkley (Tex.), 99 S. W. Repr. 181 (plaintiff maintained a pipe over the roadbed of a railroad, which injured a servant of the latter); Norfolk Southern R. R. Co. v. Beskin (Va., 1924), 125 S. E. Repr. 678 (collision between train of plaintiff and automobile of defendant operated by him, injuring defendant’s guest; judgment against plaintiff); City of Tacoma v. Bonnell (Wash., 1911), 118 Pac. Repr. 642, Annotated Cases, 1913 B, 934 (plaintiff negligent in maintaining electric wires, defendant in permitting plank to fall on wires, resulting in death of third person).

In her answer to the sci. fa., Charlotte R. Marburger also objects to being brought upon the record as an additional defendant because the plaintiff in her statement of claim sets forth that she (Marburger) was operating her car in a careful and lawful manner and because she has no liability either jointly with said defendant or severally. These reasons would not defeat the right of the original defendant to bring her upon the record in this proceedings.

For the reasons above stated, the original defendant, Franklin E. Montag, is not entitled to bring in Charlotte R. Marburger as an additional defendant.

Order of court.

And now, April 5,1930, judgment is entered for Charlotte R. Marburger on the sdre facias to bring her upon the record as additional defendant, and bill of exceptions is sealed for the original defendant, Franklin E. Montag.

Prom Tilomas H. Greer, Butler, Pa.


author: Fleming, P. J.,

text:
    Smith v. Bellefonte Trust Company, Executor.

      A. C. Dale, for plaintiff.

      N. B. Spangler, Ivan Walker and W. Harrison Walker, for defendant.
    Jan. 18, 1930.
   Fleming, P. J.,

— The matter before us is a rule upon the defendant to show cause why the statement of claim filed herein should not be withdrawn and an amended statement filed in lieu thereof. The defendant resists the rule and assigns as reasons therefor the following:

1. Because said amended statement sets forth a new cause of action.

2. Because more than six years have elapsed since a portion of the alleged original cause of action arose, and the amended statement cannot be allowed as to any alleged items in the original statement accruing prior to six years of the date of said amendment.

The original statement avers that the plaintiff, at the special instance and request of Ellis E. Irwin, defendant’s decedent, permitted the said defendant’s decedent to come to her home and to reside and make his home there from Sept. 21, 1921, to Oct. 31, 1926, “with the exception of brief periods of time during which the said Ellis E. Irwin visited at other places.” Plaintiff avers that she boarded and lodged defendant’s decedent, doing his washing and ironing and performing many services for him, adding, “the specific items being set forth in the schedule herein referred to.” This schedule shows unvarying monthly charges of $30 per month for board and $2 per month for laundry. The dates show such charges covering an unbroken period beginning Sept. 21, 1921, and ending March 31, 1923. No further charges are recorded until Jan. 1, 1925, when another unbroken period begins extending from such date, to wit, Jan. 1, 1925, to Nov. 10, 1926. Nowhere in plaintiff’s original statement is there an averment that defendant’s decedent agreed to pay any sum for the ¿services alleged to have been performed for him. The statement also contains an averment that “she permitted the said Ellis E. Irwin to erect a road-stand, for which the said plaintiff charged the said Ellis E. Irwin Three Dollars ($3.00) per month rent.” There is no averment that defendant’s decedent leased the ground upon which such road-stand was built nor that defendant’s decedent agreed to pay the rental named therefor.

The amended statement sought to be filed in lieu of the original is more prolific in its explanation of the domestic status and personal condition of defendant’s decedent at or about and during the period alleged. It contains an averment that defendant’s decedent promised by means of letters, which plaintiff admits are no longer in existence, and by oral promises “to pay the plaintiff an ample amount for room, boarding, washing and her personal services in attending to the sewing and mending of his clothing and caring for himself as more or less an invalid and helpless.” She further avers that “no fixed amount was named for these services because of the confidence the plaintiff had in her deceased uncle, the said Ellis E. Irwin.” She avers that the “promises of ample compensation in money were repeated in the hearing of others,” and that “it was understood between the plaintiff and the deceased defendant that she, the plaintiff, for the services aforesaid should be amply paid after the death of her said uncle, Ellis E. Irwin.” The amended statement avers the charge for rent of ground used in the road-stand as a “reasonable monthly rental” and fixes the sum thereof at $3, which was the sum named in the original statement.

The total sum claimed in the amended statement is $2551, whereas that of the original statement was $1386. The amended statement claims for an unbroken period from Sept. 21, 1921, to Nov. 11, 1926, while the original claims for broken periods between such dates.

In Hanley et ux. v. Ryan et ux., 87 Pa. Superior Ct. 6, Judge Keller cites a number of cases demonstrating what constitutes the setting up of a new cause of action, as follows: “Where, in trespass vi et armis against a constable for an excessive distress, it omitted the admissions as to plaintiff’s tenancy: Royse v. May, 93 Pa. 454; where the relationship and standard of care was changed from that due to a person not intending to become a passenger on a street railway to that of an intending passenger: Martin v. Pittsburgh Rys. Co., 227 Pa. 18; where the statement alleged the injuries were due to negligence of defendant in using a coupler more dangerous than those in general use and the amendment charged the use of a coupler in violation of Act of Congress: Allen v. T. V. R. R. Co., 229 Pa. 97; where an averment of malicious seizure of goods by unlawful process was changed so as to aver an abuse of civil process by excessive seizure of goods: Lane v. Sayre Water Co., 220 Pa. 599; where averment that the accident was caused by the act of a fellow servant was changed so as to charge that the defendant had not provided proper signals nor employed a sufficient number of men on the train: Peterson v. Pennsylvania R. R. Co., 195 Pa. 494; where the original ground of negligence was that defendant had furnished a chain of insufficient strength and the amendment charged negligence of defendant’s vice principal in-fastening the chain to a beam: Mays v. United Natural Gas Co., 268 Pa. 325; where the statement complained of a defect in a particular machine and the amendment charged the defect to another and different machine and failure to instruct as to danger: Mahoney v. Park Steel Co., 217 Pa. 20; where the amendment set up a new promise to pay by an insurance company, following the original rejection of the claim: Grier v. Assurance Co., 183 Pa. 334; as well as the numerous cases which involved a change of parties or their relationship : Bender v. Penfield, 235 Pa. 58; Girardi v. Laquin Lumber Co., 232 Pa. 1; Stine v. Herr, 78 Pa. Superior Ct. 226, 230; La Bar v. N. Y. S. & W. R. R. Co., 218 Pa. 261, 264.”

In the instant case the original statement covered a period of time beginning Sept. 21, 1921, and continuing to March 31, 1923. After omitting the period from March 31, 1923, until Jan. 1, 1925, the period of time is again made to run and to continue from Jan. 1, 1925, to Nov. 10, 1926. In the amended claim the period of time is continuous and unbroken from Sept. 21, 1921, to Nov. 11, 1926. The amount averred to be due by the defendant to the plaintiff in the original statement of claim was $1366, and in the amended statement is averred to be $2551. In the original statement no specific oral contract between plaintiff and defendant’s decedent is averred and the statement is, if anything, as noted by the learned counsel for the defendant in his brief, in the nature of a quantum meruit. In the amended statement a specific oral contract with defendant’s decedent is averred. The original statement avers the services rendered to be board, laundry and rental of a roadside stand. The amended statement includes these and adds sewing and mending and the caring for defendant’s decedent, through the period alleged, as more or less of an invalid.

Justice Kephart, in Goldberg v. Friedrich, 279 Pa. 572, 576, prescribes as one of the tests by which it is to be determined whether a cause of action is substantially changed, the question whether the same defense is open in each, and whether the same measure of proof is required. Certainly these tests cannot be affirmatively answered in the instant case. The same defense cannot be applied to an action upon a specific oral contract that can be applied to an action in the nature of a quantum meruit, and this is especially so in an action against a decedent’s personal representative for board, washing and care practically in the form of nursing. Nor can a defense to an unbroken period of time be the same as to a period specifically averred to have been broken for an interval of one year and nine months. Nor can a defense to a claim for board and washing be applied to a claim for board, washing, sewing, mending and nursing. It is likewise true that the same measure of proof will not suffice the defendant in an action based on a specific oral contract alleged to have been made in the lifetime of defendant’s decedent, that would have been sufficient in an action based upon the original statement, which, as we have said, is, if anything, in the nature of a quantum meruit. Observing these tests, and the failure of the amended statement to measure up to the same, as well as observing the cases cited by Judge Keller in Hanley et ux. v. Ryan et ux., 87 Pa. Superior Ct. 6, brings us to the conclusion that the amended statement sought to be filed herein substantially varies the cause of action set forth in the original statement.

Further, it is plain that the second contention of the defendant should also be sustained. It is clear that, under the original statement, that portion therein which is alleged to have accrued more than six years prior to the bringing of the suit would be barred by the statute of limitations. The suit was brought on Oct. 15, 1928. Hence, all items prior to Oct. 15, 1922, would be thus barred. The amendment attempts to evade this bar by shifting the ground from that of a quantum meruit to an express oral promise by defendant’s decedent to pay “an ample sum” after the death of defendant’s decedent. In Card v. Stowers Pork Packing Co., 253 Pa. 575, 579, a case cited with approval in Andrews v. Marsden, 278 Pa. 56, Hanley et ux. v. Ryan et ux., 87 Pa. Superior Ct. 6, and a number of other cases, we find the court to say: The rule is well settled that, “after the statute of limitations has run a plaintiff cannot by amendment shift his ground of complaint, introduce a new cause of action, cure a fatal defect in the pleadings, change his cause from a common law to a statutory proceeding, or deprive the defendant of any valuable right.”

Again, in Philadelphia v. Hestonville, Mantua & Fairmount R. R. Co., 203 Pa. 38, cited by defendant, an amendment was denied, the court saying in part: “The reason upon which it was refused was that the introduction of the matter covered by the proposed amendment would constitute a different cause of action from that which was originally covered by the plaintiff’s statements, and that, in view of the fact that the statute of limitations had run against the claims as originally stated, it was not proper to allow amendments at the time of the trial which would deprive the defendants of the benefit of the statute. It was contended at the trial, and is now contended on behalf of the city, that this view of the case was not sound. There is no doubt that, under the statutes of amendment which operate in this Commonwealth, there has been and ought to be a large measure of liberality in regard to allowing amendments of pleadings, in order that substantial justice between litigants may be reached, and that substance may not be lost sight of in a rigid adherence to mere matters of form. It is not necessary to refer to many decisions in which this doctrine is laid down. The plaintiff’s counsel has referred to some of them. We do not hesitate to recognize the doctrine, and are quite ready to acknowledge its good sense as well as its validity. At the same time, it is equally well settled that amendments will not be allowed, either in the form of the action or in the form of the pleadings, where such allowance will deprive a defendant of the benefit which the lapse of time has given him.”

We must, therefore, decline to allow the amendment, as such would deprive the defendant of a benefit which lapse of time has given.

Decree.

And now, Jan. 18, 1930, the rule upon defendant to show cause why an amended statement of claim should not be filed and the original statement of claim withdrawn is dismissed, at the cost of the plaintiff.

Prom S. D. Get tig, Bellefonte, Pa.


author: Groff, J.

text:
    In re Independent School District in Ephrata Township.

      Robert Ruppin, for petition; H. Edgar Sherts, contra.
   Groff, J.

— This is an application under section 117 of the School Code of Pennsylvania, Act of May 18, 1911, P. L. 309, as amended by section 3 of the Act of May 20, 1921, P. L. 1023, for the establishment of an independent school district.

An examination of the petition shows that it has the proper number of signatories, and sets out the necessary facts to give this court jurisdiction. No answer has been filed, but the School Directors of Ephrata Township School District and the Lincoln Independent School District appeared on the day of hearing and opposed the establishing of the independent district prayed for.

An examination of the School Code clearly shows that the intention of the sponsors thereof, as well as the Legislature which enacted it into law, was to establish a uniform system for the government of our public schools in Pennsylvania, and for that reason, by section 108 of the Code, abolished all independent school districts existing in the State of Pennsylvania from and after the beginning of the first school year beginning under the Code, and provided that the school districts should be uniformly divided into four classes.

The Code above referred to, however, provided, in section 117, that the Court of Common Pleas of the proper county may, after a hearing and after taking into consideration:

“1. The desire of a majority of the taxable inhabitants of a contiguous territory for better school facilities;

“2. Reasonable need on the score of the welfare of pupils and taxpayers; and

“3. Consistency with the welfare of the pupils and taxpayers of the township district as a whole,”

make a decree establishing an independent school district, and fix the boundaries thereof, etc. (Kingston Township Independent School District’s Petition, 23 Dist. R. 1003), thereby recognizing an emergency in which an independent school district might be necessary, but leaving the establishment thereof to the judgment and discretion of the Court of Common Pleas.

The territory proposed in this ease to be erected into an independent district is the extreme eastern end of Ephrata Township, together with three farms located in the Lincoln Independent School District.

Ephrata Township, according to the evidence, is composed of a territory containing ll,829i acres of assessed real estate; the proposed independent school district would contain 1955 acres cut from the above acreage, and would, in addition thereto, contain the area of two farms now in the Lincoln Independent District, the acreage of which was not given. The taxable inhabitants of Ephrata Township number 1464, 1450 of whom are in Ephrata Township proper, and 14 belong to that part of Ephrata Township now in the Lincoln Independent School District. Of this number of taxables, 150 are located in the proposed independent district in Ephrata Township, and 14 are in the Lincoln Independent School District. i

The assessed value of all the real estate in Ephrata Township is $1,917,617, and in the Lincoln District $26,200, and there would be in the proposed independent district of the above assessed valuation $180,587 from Ephrata Township proper, and $18,350 from the Lincoln Independent District.

The amount of tax collected by the Ephrata Township School Board from the real estate located in the proposed independent district is $3787.24, and from the property now located in the Lincoln Independent District approximately $140, making a total amount of tax at present assessed and collected in the proposed independent district $3927.24.

It was testified by Jacob M. Fry, who seems to be one of the leading men, if not the leading proponent, of the independent school district, that of the above amount of tax collected, Ephrata Township spent in the proposed independent district $1600 for salaries and $300 for maintenance, and he then testified that the independent district can maintain a better school and effect a saving on the same taxation as now exists. It will be noted that the difference between the amount expended in the proposed independent school district and the amount of tax collected would be a loss to the balance of the Ephrata Township School District.

The testimony of the witnesses called for petitioners shows that they wanted better school facilities, and the same Jacob M. Fry testified that by that he meant a better school, and when asked the following question by the court: “It is the teacher you object to, nothing else,” he answered, “ Nothing else.”

The further evidence of petitioners show that while they complain about the condition of the Frysville School in the proposed independent district, they propose to retain in the district the Hahnstown and the Frysville Schools, without building any additional school houses, or employing any additional school teachers, and, as we understand it, will use the same equipment as is now used in those schools. On cross-examination, a witness for the petitioners, in reply to the following question: “Is not the whole cause of this petition for an independent district due to the fact that the school board proposes to build a new school house and to transport the children from this district down to the new school house? A. Yes.”

The new school house proposed to be built is a four-room graded school to which all the witnesses called for the petitioners seemed to be opposed, and, as one of the witnesses says, the construction and establishment of this graded school is one of the contributing causes for wanting the independent district.

On the other side of the question, the school directors of Ephrata Township School District testified that the Hahnstown and Frysville Schools, the two that would remain in the independent district, are now overcrowded, and that the congested condition of the schools in other parts of the district makes it imperative that they should provide additional school facilities, and that, therefore, they had agreed to erect this four-room school house at a point about midway between the Akron, Hahnstown and Frysville Districts, -which would be about midway between the east and west sections of the township; that they intended to continue the Hahnstown and Frysville Schools, but they will permit any pupils from those districts who desire to attend the graded school to do so, and it was admitted by one or more witnesses for the petitioners that this would give additional facilities for children from the proposed independent district, which they could not have if the independent district was established.

There was some testimony that the transportation of small pupils from the two schools in the proposed independent district to the proposed four-room graded school would be a hardship on the small pupils, but this is met by the testimony of the directors that the two schools in the proposed independent district would be kept open.

It was admitted that the following witnesses, subpoenaed by the petitioners and not called, would testify to the same facts that were testified to by petitioners’ other witnesses: Reuben Horst, Horace Martin, Noah Burkholder, Ervin Martin and Ephraim Zimmerman.

It would, therefore, seem to be a conclusive fact that the independent district could operate its schools as they are now operated for less than the amount of tax now being collected therein for school purposes. The object of the School Code, while it intends that the court shall take the convenience of the taxpayers into consideration, is that the welfare of the pupils shall always be the primary object in establishing independent districts.

1The primary object of courts in deciding questions of this kind should be the welfare of the pupils in the independent district, as well as the welfare of the pupils in the remainder of the district from which the independent district is carved, and it would seem to the court that if the independent district is established the pupils therein would be deprived of the advantages of the superior opportunities they would have in the graded school to obtain knowledge; that if this independent district was established there would be no sufficient reason remaining for the establishment of the proposed graded school, and, therefore, the children in the remaining portion of Ephrata Township School District, as well as those in the proposed independent district, would be deprived of the advantages of the advanced education which they could obtain at this graded school.

“The burden of showing the necessity for an independent school district rests upon the petitioners, and the formation of an independent school district will not be allowed except for substantial and exceptional reasons:” Schellsburg Borough Independent School District, 22 Dist. R. 608.

In our opinion, none of the three reasons given above for the establishment of an independent district have been shown by the evidence, and, therefore, we feel that at this time the petition for the establishment of the independent district should be dismissed, reserving, however, the right of the petitioners to re-petition the court after a reasonable period from the erection, completion and operation of the proposed graded school.

The learned counsel for petitioners raised the question as to whether or not the portion of section 3 of the Act of May 20, 1921, P. L. 1023, which reads as follows, “In all cases where such school district, if created, or the remaining part of the original district, would constitute a fourth class school district, the merits of the petition for its creation, from an educational standpoint, shall be passed upon by the Superintendent of Public Instruction, and it shall not be granted unless approved by him,” is constitutional.

It is not necessary for us to discuss, or pass upon, this question at the present time, for the reason that we are dismissing the petition for other causes.

And now, July 13, 1929, the petition for the erection of an independent school district from parts of the Ephrata Township School District and the Lincoln Independent School District is dismissed, at the cost of the petitioners.

From George Ross Eshleman, Lancaster, Pa.


author: Houck, J.,

text:
    North Union Township Auditors’ Report.

      B. V. O’Hare and F. F. O’Hare, for auditors.

      L. R. Enterline, for exceptants.

      April 21, 1930.
   Houck, J.,

— S. A. Klinger, secretary-treasurer of the Board of Supervisors of North Union Township, appealed from the report of the auditors of said township for the years 1922 to 1928, inclusive, and, reserving the right to file additional exceptions to the merits of the audit, assigned two exceptions, to wit, (1) said audit is without warrant in law since it includes the accounts for more than a single year; and (2) said audit is without warrant and is irregular in law because it is not itemized.

At the argument, the first exception was abandoned and the appellant conceded that the auditors had the power to audit the accounts for the several years in question. Hence, the sole question in the case is whether the appeal may be sustained on the ground that the auditors’ report is not itemized.

The appellant is surcharged, as treasurer of the board of supervisors, in the sum of $434.80, and, as supervisor, in the sum of $392.44. His receipts and expenditures are not particularly itemized in the report, but it is stated therein that he received from the tax collector the amounts following: April 11, 1923, $100; May —, 1923, $200; Nov. 3, 1923, $21; a total of $321, and that his account does not show that the township received these amounts. These items, with interest, total $434.80. The surcharge against appellant as supervisor is made up of an item amounting to $264 received by him as fees for attendance at meetings of the supervisors, the auditors finding that it was his duty to attend the meetings as secretary and treasurer, for the performance of which duties he was paid commissions; another item of $115, being the amount paid him for writing the tax duplicates; and the final item being $13.44, which he received from the township for machinery, tools and supplies. Therefore, although the report is not itemized in detail, the manner in which the surcharge against the appellant is made up is readily ascertainable.

It is the duty of the auditors, under the provisions of section 327 of the Act of July 14, 1917, P. L. 840, to file with the clerk of the Court of Quarter Sessions a concise itemized statement of the receipts and expenditures of the several township officers. If they fail to file such a report, they may be compelled to do so by mandamus (Com. ex rel. District Attorney v. Moyer et al., 7 D. & C. 179), but we do not think failure to file a report in the form required by the statute is ground for appeal. The purpose of the appeal is to correct errors which, if permitted to stand uneorrected, will affect the true financial liability of any officer to the township or of the township to any officer. The accounts of the officer in question may be investigated de novo on appeal, and in this way the true financial liability ascertained. In our opinion, the appellant has mistaken his remedy so far as the attack on the form of the report is concerned, but since he reserved the right to file exceptions to the merits of the audit, we shall permit him to do so. Undoubtedly, his real purpose is to appeal from the surcharge against him, and he has sufficient notice from the audit of the items constituting the surcharge.

The exceptions to the auditors’ report are dismissed and the appellant is allowed fifteen days from this date to file additional exceptions to the merits of the auditors’ report and settlement.

And now, April 21,1930, an exception is allowed appellant and bill is sealed.

And now, April 21, 1930, an exception is allowed the appellee and bill is sealed.

Prom M. M. Burke, Shenandoah, Pa.


text:
    Zubris v. Zubris.

      W. G. Treibley, for libellant.
    March 31, 1930.
   Houck, J.,

This case was so proceeded with that a master was appointed, who recommended that a decree be granted on the ground of cruel and barbarous treatment, endangering the life of libellant, and the offering of such indignities to her person as to render her condition intolerable and life burdensome, thereby forcing her to withdraw from respondent’s house and family. When the master’s report was presented to the court, the original libel and subpoena and the sheriff’s return were not attached thereto. In their place copies had been substituted with a certificate of the prothonotary to the effect that, after due and diligent search, he was unable to locate the originals but that the copies are true and correct copies. The record showed that notice was not served on the respondent of the intention to substitute copies for the original record papers, and, consequently, the record was remanded to the master for-further action. Thereupon the libellant presented her petition to the court, alleging that personal service of the libel, subpoena and rule to appear and answer were made on the respondent on Sept. 26, 1929; that these papers were duly returned by the Sheriff of Schuylkill County to the prothonotary’s office, where they were lost or mislaid and cannot be found. Attached to the petition is a copy of the original libel, subpoena and rule to appear and answer which are alleged to be true and correct copies of the original papers. On this petition a rule was granted on the respondent to show cause why the copies should not be substituted for the originals. This rule was served on the respondent personally and he filed no answer thereto. Consequently, the rule was made absolute. The master then filed a supplemental report, detailing these proceedings and again recommending the entry of a decree. The evidence fully supports the master’s findings of fact, conclusions of law and recommendation, and the only question is whether the copies may be substituted for the lost original papers.

We have no doubt of our right to substitute the record papers in this case. Every court of record has a supervisory and protecting charge over its records and the papers belonging to its files and may at any time direct the substitution of papers in case the originals are lost. The substitution can be made only after a personal notice to the opposite party of the intention to move the court: 17 Ruling Case Law, 1173, 1174. By section 26 of the Act of April 25, 1850, P. L. 569, 573, all the powers and authorities conferred upon the several Courts of Common Pleas by the 13th section of the Act of June 16, 1836, P. L. 784, 789, relating to the perpetuation of testimony, are extended and made applicable to the perpetuation of testimony in cases of lost or destroyed records of any of the courts of record in this Commonwealth, However, this remedy is not exclusive and the court has the inherent power under the common law to substitute copies for lost originals: Com. v. Becker, 14 Pa. Superior Ct. 430; Com. v. Garletts (No. 1), 81 Pa. Superior Ct. 268. See, also, State v. Ireland et al., 109 Me. 158, 83 Atl. Repr. 453, and Spadra Creek Coal Co. v. Eureka Anthracite Coal Co., 104 Ark. 359, 148 S. W. Repr. 644.

The docket entries show that the respondent was personally served with a true and attested copy of the subpoena, libel and notice to appear and answer. If he desired to question the correctness of the copies sought to be substituted, he could have done so by answering the rule to show cause. Since he did not do so, it must be taken as established that the substituted papers are true and correct copies of the originals. The rule to show cause why the copies should not be substituted having been made absolute, we now direct that the copies be substituted for the lost papers.

On the record as now presented, showing that the libellant is entitled to a divorce on the grounds alleged in the libel, we enter the following

Decree.

And now, March 31,1930, the court having heard this case, and having fully considered and proceeded to determine the same as to law and justice appertain, do sentence and decree that Agnes Sarah Zubris be divorced and separated from the nuptial ties and bonds of matrimony heretofore contracted between her, the said Agnes Sarah Zubris, the libellant, and the said Joseph Zubris, respondent. And that thereupon all and every the duties, rights and claims accruing to either the said Agnes Sarah Zubris or the said Joseph Zubris at any time heretofore, in pursuance of said marriage, shall cease and determine; and the said Agnes Sarah Zubris and Joseph Zubris shall severally be at liberty to marry again in like manner as if they had never been married, and, further, the court do award to the said Agnes Sarah Zubris against the said Joseph Zubris her costs in this behalf expended.

From M. M. Burke, Shenandoah, Pa.