author: Koch, J.,

text:
    Blythe Township Election.

      Election law — Opening of ballot-boxes — Substantial error — Act of April 23, 1927.

    1. Under the Act of April 23, 1927, P. L. 360, relating to the opening of ballot-boxes, there is a substantial error where it appears that a candidate for a local office was nominated on several tickets and that the election board computed the total vote for such candidate on all the tickets on which he ran as a candidate, but did not state on the triplicate return-sheet the number of votes that he received on each of the respective tickets.
    2. Not to indicate the respective party votes cast for a candidate running on more than one ticket is a failure to make a proper return, because a political party may thereby lose its right to a column on the primary ticket for the nomination of candidates for the next election.
    Petition to open ballot-box. C. P. Schuylkill Co., Nov. T., 1927, No. 862.
    Nov. 21, 1927.
   Koch, J.,

This proceeding is based on the provisions of an act entitled “An act providing for the opening of ballot-boxes after general, municipal, special and primary elections, upon petition to the Court of Common Pleas, or a judge thereof, under certain circumstances, and imposing certain duties in connection therewith upon the court, the prothonotary and the county treasurer,” approved April 23, 1927.

A requisite number of persons presented their petition, in which they averred that they are qualified electors of Blythe Township, Silver Creek District, in this county, and that upon information which they consider reliable they believe that fraud was committed in the computation of the votes cast in the said election district, or in the marking of the ballots or otherwise in connection with such ballots at the municipal election which was held in said district on Tuesday, Nov. 8, 1927, and we ordered that, upon payment of $50 to the prothonotary, conditioned as required by said act, the sheriff should take into custody the ballot-box of said district and bring it into court. The ballot-box having been brought into court, the same was opened by the court, and the votes were carefully recounted by clerks appointed by the court. It was found that the election officers of said district had not counted one ballot because it was marked with a cross made with ink in the square back of a certain party name in the first column of the ballot. The ballot was produced and the votes thereon were counted in court for the candidates indicated. All the votes for the respective candidates voted for at said election in said district were carefully counted, and the result thereof showed slight differences in the total votes cast for some candidates when compared with the returns of the election board. But no intentional or actual fraud was committed by said board in the computation of the votes cast or in the marking of the ballots. However, substantial error appears in the counting of the ballots by the said board, in this, that where a candidate for a local office was nominated on several tickets, the election board computed the total vote for such candidate on all the tickets that he ran on as a candidate, and did not state on the triplicate return-sheet the number of votes that he received on each of the said respective tickets. For the purpose of illustration, take the votes for Morrison Matthews, a candidate for justice of the peace on the Republican, the Democratic and the Citizens tickets. The report of the election board gives him a total of 193 votes. The recount shows that he received 66 Republican votes, 121 Democratic votes and one Citizens vote, or 188 votes in all. An error of 5 votes was made in the total. James Layman received 170 votes for registry assessor, but the recount shows that 51 were votes on the Republican ticket and 119 on the Democratic ticket. George Nimrod received 19 votes in all for the office of judge of election, but the return of the election board shows that the 19 votes are composed of 16 on the Citizens ticket and 3 on the Equal Tax ticket. A substantial error also appears in the total votes cast for J. W. Geary for county surveyor. According to the return of the election board, he received 202 votes, but, according to the recount, he received 192 votes, there being a difference of 10 votes in the number of Democratic votes counted. Not to indicate the respective party votes cast for a candidate running on more than one ticket is a failure to make a proper return, because a political party may thereby lose its right to a column on the primary ticket for the nomination of candidates for the next election. Such an omission may be considered as a constructive or legal fraud, because it not only violates a settled rule of public policy, but it violates what the law clearly contemplates and requires to be done. The recount was predicated entirely upon the petitioners’ belief that fraud was committed in the computation of the votes cast, or in the marking of the ballots or otherwise. But I find no intentional fraud, either in the computation of the votes cast or in the marking of the ballot, but the omission to indicate how many votes were cast by the respective parties that nominated the same candidates constitutes constructive fraud within the meaning of the word “otherwise.”

In order that the ballot-box and the contents thereof may be available as evidence in any prosecution which may be begun against any person or persons alleged to be guilty of said constructive or legal fraud, it is ordered that the sheriff retain custody of the said ballot-box until the further order of the court. And, further, it is certified to the prothonotary that substantial error was committed in the computation of the votes cast on the ballots.

Prom M. M. Burke, Shenandoah, Pa.


source: Caselaw Access Project

author: Fronefield, P. J.,

license: Public Domain

text:
    Cohen v. Mead & Silver.

      Summons — Attachment execution — Service of writ — Sheriff’s return— Amendment of return — Correction of record.

    1. "Where a sheriff’s return to an attachment execution shows the writ was served on the garnishee by giving a true and attested copy to his> superintendent at his place of business, without stating why it was not served at his residence, the return may be corrected by supplying the deficiency.
    2. "When, at the hearing of a rule to dissolve an attachment execution on the ground that the proceedings prior to judgment were irregular, it appears that the apparent irregularity had been corrected by leave of court, the rule will be dissolved.
    Rule to set aside service of return of writ and to dissolve attachment execution. G. P. Delaware Co., June T., 1926, No. 2072.

      William K. Rhodes, for rule; Himkson, Ledward & Hinkson, contra.
    July 15, 1927.
   Fronefield, P. J.,

The plaintiff issued an attachment execution against the defendants on a judgment entered here on a record from the Municipal Court of the County of Philadelphia, and directed the sheriff to attach the moneys, etc., of the defendants in the hands of James T. Adrien, garnishee. The sheriff made a return to the attachment execution that he attached the money of the defendants in the hands of James T. Adrien, the garnishee, and that he summoned the garnishee by giving a true and attested copy of the writ to W J. McMahon, superintendent for James T. Adrien, at his place of business, 79th Street, Upper Darby, without stating why the attachment was not served at his residence.

The garnishee moved the. court to set aside the return, because it did not set forth that, upon inquiry at his place of business, his residence in the county was not ascertained or why service at his residence failed, whereupon the sheriff petitioned the court to amend his return, which was allowed, and the return now complies with the requirements of the act.

The garnishee also moved the court to dissolve the attachment execution because, he alleges, the writ of summons was issued on the 2nd day of November, 1925, and on Nov. 16th judgment was taken for want of an affidavit of defense, and that the affidavit of service of the statement of claim shows that service was made on Oct. 2, 1925.

The record shows that the summons was issued on Oct. 27, 1925; that it was served on defendant on Nov. 2, 1925; that the statement of claim, with notice to file affidavit of defense within fifteen days from the service thereof, was served on Oct. 2, 1925, which has been duly corrected by amendment, allowed by the Municipal Court, to read that the statement of claim, with notice, etc., was served on Nov. 2, 1925. Judgment was entered on Nov. 19, 1925.

Without deciding whether or not the garnishee may question the regularity of the proceedings prior to the entry of judgment against the defendants, we hold that the proceedings are now regular.

And now, July 15, 1927, the rule of the garnishee to set aside the service of the attachment execution on James T. Adrien and his rule to dissolve the attachment execution are hereby discharged.

The garnishee has fifteen days from the day this order is served on him or his attorney of record to file answers to interrogatories.

From William R. Toal, Media, Pa.


author: Hasslek, J.,

text:
    Groff v. Mellinger.

      Affidavit of defense — When not sufficiently specific.

    In an action on an open book account, an affidavit of defense is insufficient which denies that the defendant owes to the plaintiff the amount claimed, or any other amount, without stating the facts on which he bases the legal conclusion that he is not so indebted.
    Rule for judgment for want of a sufficient affidavit of defence. C. P. Lancaster Co., Dec. T., 1926, No. 93.

      B. C. Atlee, for rule; Hamish & Hamish, contra.
    April 16, 1927.
   Hasslek, J.,

Plaintiff’s claim, as set forth in his statement, is for a balance due on an open book account to the amount of $225. A copy of the book account is attached to the statement.

In his affidavit of defense the defendant denies his liability as follows: “Defendant denies that he is indebted to the plaintiff in the sum of $225, with interest from Sept. 8, 1922, as set forth in Exhibit A attached to plaintiff’s statement; the defendant denies that he is indebted to the plaintiff on a book account in any sum whatsoever.”

Section 8 of the Act of May 14, 1915, P. L. 483, provides: “It shall not be sufficient for the defendant in his affidavit of defense to deny generally the allegations of the statement of claim, but each party shall answer specifically each allegation of fact of which he does not admit the truth.”

A general denial in the affidavit of defense of the allegations of the statement is not sufficient. The defendant must specifically deny all the averments of the statement of which he does not admit the truth: Eberbach v. Clyde Steamship Co., 74 Pa. Superior Ct. 79; Fulton Farmers Ass’n v. Bomberger, 262 Pa. 43; Pennsylvania R. R. Co. v. Milling Co., 33 Lanc. Law Rev. 402. A defense must be stated with reasonable certainty and must allege facts and not conclusions of law: Berko v. Kemper Construction Co., 65 Pa. Superior Ct. 589; Warfel v. Burkholder, 37 Lanc. Law Rev. 170. An affidavit of defense denying liability and alleging payment, but not specific facts relating thereto, is defective, evasive and insufficient: Gorman v. Elfreth, 27 Dist. R. 90; Weener v. Heller, 29 Dist. R. 1078.

The denial of his indebtness to the plaintiff by defendant in the affidavit of defense in this case in the amount of claim, or that he is indebted to the plaintiff on a book account in any sum whatever, is a general and evasive denial. It states a conclusion without stating the facts from which that conclusion is drawn. The defendant should have stated the facts upon which he bases the legal conclusion that he is not indebted. He should have stated that he never had the dealings or transactions claimed for in the book account, or that he did not receive the items for which the claim is made, or that he has paid the claim or been discharged from liability in some other way, giving a full statement of the particulars of such payment or discharge. The affidavit of defense is clearly insufficient in our opinion, and we enter judgment for the plaintiff for want of a sufficient affidavit of defense for $286.67.

Prom George Ross Eshleman, Lancaster. Pa.


author: Stock, J.,

text:
    Heidelberg Township Supervisor.

      Township supervisors — Second class townships — Vacancies—Petitions in two parts, addressed to different courts.

    Under section 180 of the Act of July 14, 1917, P. L. 840, providing for the appointment for the unexpired term by the Court of Quarter Sessions in case of vacancy in the office of township supervisor, the fact that the petition was presented in two parts, one to the Court of Quarter Sessions, praying for the appointment of a proper person to fill a vacancy in the office of supervisor "until the next election,” and the other to the Court of Common Pleas of the same county, praying fdr an appointment “for the unexpired term,” both bound in one cover and presented to the Court of Quarter Sessions, does not avoid the appointment where the court made an order thereon making the appointment “as prayed for,” since it will be assumed that the court had in mind the prayer which accorded with the provisions of the act, which was "for the unexpired term.”
    Petitions for the appointment of a proper person to fill an alleged vacancy in the office of township supervisor in Heidelberg Township. Q. S. York Co.

      Harvey A. Gross, for petition for appointment of Bollinger.

      C. W. Albert Bochow, for appointment of Little.
    April 4, 1927.
   Stock, J.,

March 7, 1927, a petition was presented to this court, alleging that a vacancy now exists in the office of township supervisor of the Township of Heidelberg by reason of an alleged defective appointment heretofore made, and praying for the appointment of Samuel H. Bollinger to fill such vacancy. This petition is signed by one of the supervisors of said township and by more than ten voters who are owners of real estate in said township. Supplemental petitions praying for the appointment of the same person were filed March 21, 1927, and March 28, 1927. March 21, 1927, a petition was filed alleging that Samuel H. Bollinger is not a proper person to be appointed to said office, and praying for the appointment of Walter W. Little. This petition is signed by one of the township supervisors of said township and by more than ten voters who are owners of real estate in said township.

A hearing was had on the facts alleged in these petitions. This, however, is not a proceeding to remove a township supervisor, but to appoint a successor to fill a vacancy. The primary question for determination is, Does a vacancy exist?

On-Dec. 1, 1924, the Court of Quarter Sessions of the Peace of York County appointed Samuel H. Bollinger to fill the vacancy in the office of supervisor of Heidelberg Township. Bollinger accepted the appointment and assumed the duties of the office, and has served in that capacity ever since. If this appointment be regular, no vacancy exists.

The alleged irregularities in this appointment are confined to the form of the petition. Section 180 of the General Township Act, approved July 14, 1917, P. L. 840, provides for the appointment in case of vacancy in the office of supervisor of townships of the second class by the Court of Quarter Sessions upon presentation of a petition signed by a supervisor and not less than ten voters who are owners of real estate in the township. The petition presented Dec. 1, 1924, is signed by two supervisors and also by more than ten voters who were at that time owners of real estate in Heidelberg Township. The court, therefore, had jurisdiction. The fact that this petition was prepared in two parts, the one addressed to the proper court and the other addressed to the Court of Common Pleas, which parts were fastened together to form one petition, and was presented to the Court of Quarter Sessions and acted upon by the court, certainly does not invalidate the appointment. The order endorsed on the petition by the clerk is: “Filed Dec. 1, 1924, and appointment made as prayed for.” The prayer of the petition in the one part is: “To fill the said vacancy until the next election for township offices;” and in the second is to appoint “To serve as such for the unexpired term made vacant by the resignation of Paul N. Miller.” As these inconsistent prayers, exist in the same petition, it is only fair to assume that the court had in mind the prayer which accorded with the provisions of the act of assembly above referred to and that the court made the appointment for the unexpired term.

It may be pointed out, in passing, that section 145 of the Act of 1917 provides a term of six years for township supervisors. Section 146 provides that their terms shall expire in regular succession every two years, so that- but one supervisor is elected at any one time. Section 180 is mandatory in its requirements: “The Courts of Quarter Sessions shall . . . appoint a person to fill the vacancy for the unexpired term of the person whose place he is appointed to fill.” It would, therefore, follow that since this court had jurisdiction to appoint on the petition filed Dec. 1, 1924, and since this court did exercise such jurisdiction, no appointment could be made other than one for the unexpired term.

If this court should act now and appoint another after the previous appointee had accepted the appointment and had assumed the office, only confusion would be created and uncertainty would follow as to the rights of the respective appointees to hold office, which would seriously affect the legality of all corporate acts of the board of township supervisors. In order to avoid such uncertainty and to remove all possible doubt concerning the form of appointment heretofore made, the following order is made:

And now, to wit, April 4, 1927, Samuel H. Bollinger is hereby appointed township supervisor of the Township of Heidelberg for the unexpired term of Paul N. Miller.

From Richard E. Cochran, York, Pa.


author: Davison, P. J.,

text:
    Opening of Quincy Township Ballot-Box.

      Election law — Petition by electors to open ballot-box — Act of April 28, 1927 — Fraud and substantial error — Immaterial error — Loss of $50 forfeit posted by petitioners.

    Where three qualified electors, in accordance with the Act of April 23, 1927, P. L. 360, file a bond for $50 and allege that fraud has been committed in computing the returns of an election district and the ballot-box is opened and the vote counted, and the result of the count shows only immaterial errors in the computation and no fraud, the return as made by the election board will not be altered and the $50 forfeit will be ordered paid over to the county treasurer.
    Petition of certain qualified electors of the Fourth Election District of Quincy Township for the opening of the ballot-box in said district. Recorded Vol. “K,” page 440. C. P. Franklin Co.

      T. Z. Minehart, for petitioners.
    Nov. 30, 1927.
   Davison, P. J.,

-Upon petition filed by more than three qualified electors of the Fourth Election District of Quincy Township, Franklin County, Pennsylvania, alleging that fraud, although not manifest on the general returns of votes made from said district at the municipal election held on Nov. 8,1927, was committed in said district in the computation of the votes east therein, or in the marking of the ballots or otherwise in connection with such ballots, said court ordered the Sheriff of Franklin County to seize said ballot-box and to have it before said court on Friday, Nov. 25, 1927, at 10 o'clock A. M., to he opened as required by law; and said court designated F. S. Magill, of Chambersburg, in said county, and C. P. Omwake, of Antrim Township, in said county, to cause the entire vote of said district to he correctly counted, and appointed T. Z. Minehart and C. H. Clippinger to assist in tabulating said vote.

On said day said ballot-box was opened in open court and said parties so designated examined the same in the presence of the judge of said court and examined the marking of the ballots and correctly counted said ballots and made return thereof to said court, which said computation and return are filed herewith.

From said examination of said ballots and computation of the votes cast in said election district at said election, as shown by the opening of said ballot-box, the court finds that there was no fraud or indication of fraud on the part of the election officers of said district at said election, but everything, so far as shown by said ballots and computation thereof, showed absolute fairness and honesty. Some small errors in the counting of the vote were found, but they were not substantial errors and were not caused by fraud. The errors were such as would easily occur on the part of election officers selected from the people at large, and were evidently not intentional nor were they sufficient to be deemed substantial. The act of assembly under the provisions of which these proceedings were instituted, being the Act approved April 23, 1927, P. L. 360, does not speak of mere errors in referring to the filing of the bond or deposit of cash with the prothonotary upon filing such petition, but provides that if fraud or substantial error were not discovered then said sum of $50 was to be paid to the county treasurer. Substantial is defined in Webster’s Dictionary as “considerable in amount, value or the like, large.” The small errors which crept into this count were not substantial as so defined, and as it is coupled with fraud in said act, it is evidently intended to be something more than mere small errors such as appear in this case.

It is, therefore, found by the court that no fraud or substantial error was committed in the computation of the vote cast on the ballots contained in said ballot-box i or fraud in the marking of the ballots contained therein, or otherwise in connection with such ballots, and, therefore, Nov. 30, 1927, it is hereby certified by said court that fraud or substantial error was not discovered in said matter, and the sum of $50 cash deposited with the prothonotary by said petitioners is hereby declared forfeited by said petitioners to said County of Franklin,- and the prothonotary of said county is directed to pay the same to the county treasurer of said County of Franklin as provided for in said act of assembly.

From King Alexander, Chamhershurg, Pa.


author: Fleming, P. J.,

text:
    Commonwealth ex rel. Guiramez v. Ashe, Warden.

      Habeas corpus — Prisoner confined at Rockview — Jurisdiction.
    A prisoner committed by the Court of Quarter Sessions of Clearfield County to the Western Penitentiary, located in Allegheny County, has no standing to petition the Court of Common Pleas of Centre County for a writ of habeas corpus to release him from imprisonment, although actually confined at Rockview, Centre County.

      Habeas corpus against Stanley P. Ashe, Warden of Penitentiary at Pittsburgh, Pa., for release of the relator from imprisonment. C. P. Centre Co., Feb. T., 1928, No. 121.

      S. D. Gettig, for relator.
    Feb. 21, 1928.
   Fleming, P. J.,

We have been asked by the relator, J. Frank Guiramez, to pass upon the legality of his commitment by the Court of Quarter Sessions of Clearfield County, Penna., at Nos. 98 and 99 December Sessions, 1926, by way of habeas corpus, the said relator being now an inmate of the Western Penitentiary of the State of Pennsylvania by virtue of such sentence and now confined at the Rockview Prison in this county.

In the first instance, it is our deep-seated opinion that this request should have been made to the Supreme Court of Pennsylvania, and not to a court of jurisdiction co-ordinate with that court which imposed sentence upon this relator.

We feel that we have no jurisdiction to act in this matter. The relator is an inmate of the Western Penitentiary of Pennsylvania, the situs of which is in Allegheny County. It was to the prison located in Allegheny County that this relator was committed and the presence of the relator in Centre County at this time is by the grace of the persons in charge of his commitment. His abode here might be for a day or for the balance of his confinement, but during his entire stay among us he is under the explicit direction of the Western Penitentiary of Pennsylvania, located at Pittsburgh, Penna., and if there is proper jurisdiction in a lower court to act upon a writ of habeas corpus in order that the legality of the relator’s commitment may be passed upon, it is for the County of Allegheny to do so and not the County of Centre. We are of the opinion that to follow any other course would cause exceedingly great embarrassment and confusion in cases of like character.

And now, Feb. 21, 1928, the writ of habeas corpus is dismissed, at the cost of the relator.

From S. D. Gettig, Bellefonte, Pá.


author: Stearne, J.,

text:
    Stambach’s Estate.

      Decedents’ estates — Foreign executors — Right to possession of securities in safe deposit-box — Acts of June 7,1917, and April 27, 1927.

      1. under the Act of June 7, 1917, § 58 (c), P. L. 447, as amended by the Act of April 27, 1927, P. L. 427, a foreign executor can only demand from a trust company in Pennsylvania such securities in a safe deposit-box as are specifically enumerated in the statutes.
    2. Assets not enumerated in the acts can only he taken over by an ancillary legal representative duly appointed in Pennsylvania.
    3. The purpose of the statute is to protect Pennsylvania creditors.
    Petition for order to deliver securities contained in a safe deposit-box. O. C. Phila. Co., April T., 1928, No. 1019.

      John H. Hutchinson, for petitioner.

      R. M. Remide (of Saul,.Ewing, Remide & Saul), for respondent.
    June 1, 1928.
   Stearne, J.,

The decedent, a resident of the State of New Jersey, was possessed of mortgages on Philadelphia real estate, shares of stock in Pennsylvania and foreign corporations, liberty bonds, and bonds of Pennsylvania and foreign corporations. These securities were kept in her safe deposit-box in the vault of a Philadelphia trust company. Her executor, duly qualified under the laws of New Jersey, complied with section 58 (c) of the Fiduciaries Act of June 7, 1917, P. L. 447, as amended by the Act of April 27, 1927, P. L. 427, and made demand upon the trust company for the delivery of the contents of the safe deposit-box.

By petition and answer, an issue was squarely raised whether such foreign fiduciary, under the above facts, is entitled to remove from this jurisdiction assets other than those enumerated in the acts.

We are relieved from a decision as to whether a foreign fiduciary, initially, has any right to access to a safe deposit-box within this jurisdiction because the respondent has voluntarily taken the responsibility of affording such access.

Briefly stated, section 58 (a) of the Fiduciaries Act of 1917, as amended, prohibits a foreign fiduciary from intermeddling with assets of decedents within this jurisdiction. Under (c) of section 58, as amended, it authorizes such foreign fiduciary, upon the filing of an affidavit as to no debts due resident creditors, to remove certain designated securities.

Section 58 (a) of the Fiduciaries Act, according to the notes of the commissioners, was founded on part of section 6 of the Act of March 15, 1832, 1 Purdon, 1074. The provision in the Act of 1832 was new, and arose by reason of the suggestion contained in the opinion in McCullough v. Young, 1 Binney, 63.

The sound reasoning for such provision in the act is found in the opinion of Sharswood, J., in Com. v. Ware, 6 Phila. 258, and also in Shinn’s Estate, 166 Pa. 121. The state of the law preceding the passage of the Act of 1832, and the remedy the act intended to supply, is fully discussed in these cases. The obvious intent of the statute is the protection of the creditors of the decedent within this jurisdiction. It is “to save him the hardship and expense of going into a foreign jurisdiction to collect his debt out of assets removed from his own state to the foreign jurisdiction:” Viosca’s Estate, 197 Pa. 280.

Numerous cases have been cited by counsel upon the question as to what personal property is or is not construed as an asset of the estate of a foreign decedent within this jurisdiction. An enumeration and analysis of such cases is not necessary to the present decision.

In Shakespeare v. Fidelity Trust Co., 97 Pa. 173, the Supreme Court, in deciding, under the peculiar facts of that case, that the bonds were no part of the. estate of the decedent within this Commonwealth, said by way of analogy (page 178) : “It was as if the bonds had been placed in a fire-proof of the defendants of which the decedent possessed the key.” The comparison is not to-day accurate, as the renter of a safe deposit-box has a key and so does the bank, and it is only by the use of both keys that a box may be opened. See Trainer v. Saunders, 270 Pa. 451. The relation of the bank is that of bailee for hire, and it is, therefore, in possession. Aside from this, the Fiduciaries Act of 1917 and its supplements superseded any prior decision.

While the provisions of the statutes may seem illogical, and in certain instances are obviously quite perilous, yet this is for remedy by the legislature and not by the courts. We feel, as was said by our Supreme Court in Viosea’s Estate, supra, (page 290), that it is every way fairer and more promotive of orderly judicial administration to adhere strictly to the letter and spirit of our statute.

We are, therefore, of opinion that a foreign fiduciary, upon compliance with section 58 (6) of the Fiduciaries Act of 1917, as amended by the Act of April 27, 1927, P. L. 427, is only entitled, in this jurisdiction, to the possession of such assets as are specifically enumerated in the statutes.

Counsel will prepare a decree in conformity with this opinion.

Van Dusen, J., did not sit.


author: Maktin, P. J.,

text:
    Gibbs v. Gibbs.

      Practice, C. P. — Depositions out of the State — Commission—Interrogatories — Evidence—Act of June 25, 1895.

    Under the Act of June 25, 1895, jP. L. 279, which, authorizes the taking of testimony of witnesses who reside out of the State by depositions upon rule to show cause, depositions will not be permitted to be taken where there is no special or substantial reason for departing from the practice of taking testimony by commission and interrogatories. '
    Rule to show cause why depositions should not be taken at Canton, Ohio. C. P. No. 5, Phila. Co., June T., 1927, No. 11325.

      Ladner & Ladner, for rule; J. W. Sechler, contra.
    May 15, 1928.
   Maktin, P. J.,

The libellant in this case charged respondent with adultery. She filed an answer denying the charges. A master was appointed, before whom libellant presented testimony and rested his case, reserving the right to call one witness, whom he named. He subsequently filed a petition averring that three witnesses, whom he designated as material witnesses, resided in the City of Canton, Ohio; that by reason of the distance of Canton, Ohio, from Philadelphia, his inability to compel the attendance of these witnesses, and the “impracticability of taking evidence by interrogatories,” he desired the testimony of these witnesses to be taken by deposition at Canton, Ohio. A rule was granted to show cause why the depositions of these witnesses should not be taken at Canton. ' Respondent filed an answer to this, petition, in which she denied that it was impracticable to take the evidence by interrogatories.

In the Act of June 25, 1895, P. L. 279, which authorizes the taking of testimony of witnesses who reside out of the Commonwealth upon rule to show cause, there is' a proviso that nothing contained in the act shall prevent the taking of testimony upon commission and interrogatories, and that depositions will not be permitted unless a special and substantial reason is shown: Neilson’s Appeal, 230 Pa. 540, 543.

The Act of June 8, 1911, P. L. 709, empowers the court granting an application to take testimony of witnesses in any other state or foreign country, to impose terms for the payment of costs, traveling expenses and counsel fee, to be paid by the party applying for the rule.

It was said in Force’s Petition, 265 Pa. 228, referring to the Act of 1911: “We find nothing in this act, however, that in any manner changes the policy of the law as laid down in the earlier cases, and it has been held that an application made under the provisions of the act should be refused in the absence of sufficient reason shown for departing from the usual custom of taking depositions under a commission.”

No special or substantial reason has been shown in the present case for departing from the practice of taking testimony by commission and interrogatories.

Rule discharged.


text:
    Harrison v. Welsh.

      Equity — Findings of fact by chcmcellor — Evidence.
    1. The findings of fact by a chancellor will be sustained by thei court in iano where they are supported by the preponderance of the evidence and to a great extent by the testimony of the plaintiff himself.

      Confidential relation — Evidence—Customer and broker — Investing broker.

    2. No relation of trust and confidence arises merely out of the relation of a customer and his investing broker, where the relationship between the customer and the broker is in fact that of vendor and vendee.
    3. To establish a confidential relation between such parties there must be some domination by one over the mind of the other, or some subservience or dependence of the mind of the one on that of the other.

      jEvidence — Letter books — Copies of letters — Letters—Marking.
    4. Letter books or copies of letters are inadmissible as prima facia evidence of the letters having been received by the sendee without some evidence indicating that the letters were deposited in the usual channels for transmission of mail.

      Evidence — Special knowledge — Duty to disclose.

    5. "Where two persons who deal with each other have equal means of knowledge as to values, the one with special knowledge as to values is not bound to disclose it to the other.
    Bill in equity. C. P. No. 5, Phila. Co., Dec. T., 1925, No. 4515.
    William M. Harrison, plaintiff, filed this bill in equity against Francis Ralston Welsh, defendant, to compel him to account for profits claimed to have been wrongfully made by him in the sale to, purchase from, or exchange of securities with, the plaintiff. Plaintiff died March 4, 1927, and his executors were substituted. In the original bill it was averred by plaintiff that for thirty years the defendant had acted as his agent in the purchase, sale and exchange of bonds; that in their transactions plaintiff had “constantly relied upon defendant’s advice as to the character of the securities and the advantage to him in disposing of certain securities and acquiring others; and in all matters of investment and reinvestment relied implicitly and. exclusively upon defendant’s advice;” that this agency involved “a confidential relationship in those matters relating to investments.” Subsequently plaintiff filed an amended bill in effect disavowing any relation of agency and basing his claim against the defendant upon an alleged relation of trust and confidence existing between them, averring that for a period of thirty years in their business relations defendant had “continuously acted as plaintiff’s confidential adviser for the purchase, sale and exchange of bonds;” and the bill averred a breach by the defendant of this confidential relationship in not disclosing to plaintiff the prices at which he (Welsh)) had purchased the bonds sold to Harrison, and the market value of bonds entering into their dealings in exchange or otherwise. The bill prayed for discovery, for an accounting and for reimbursement of the plaintiff for the amount to which the defendant had illegally profited by reason of their business relations. Defendant filed a responsive answer denying any confidential .relations between himself and the plaintiff in the above matters, and averring that he (defendant) was a dealer in bonds and securities; that the bonds sold to or delivered to the plaintiff in exchange were owned by defendant and that he (defendant) was in no sense a broker and had never received any commission or pay from the plaintiff (Harrison), and that the relations between the two men were solely those of vendor and vendee. Defendant asked that the bill be dismissed. At the hearing, plaintiff’s counsel admitted there was no relation of agency between the parties, and that the right to an accounting turned upon the alleged relation of trust and confidence existing between them during the course of their dealings. The chancellor, Henry, P. J., of 62nd judicial district, specially presiding, found that the relationship between plaintiff and defendant was that of vendor and vendee; that there was “no such relation of trust and confidence as to indicate that the mind of Harrison was dominated by that of Welsh in matters of making investments, or that Harrison was subservient to or dependent upon Welsh.” He also found that there had been no fraud or misrepresentation practiced by Welsh in his dealings with Harrison, and he further said, in his discussion of the subject, that “in all their dealings” there had been “nothing to indicate that the defendant was not a man of integrity or that he dealt in anything but high grade, or, at least, what might be termed a business man’s class of investments, or that he was guilty of any fraud or misrepresentation with reference to his securities.”
    Plaintiff offered in evidence a copy of a letter of July 18, 1910, from Harrison to Welsh. This letter contained the declination of a business offer made by Welsh and the suggestion that their relations should remain as heretofore, “namely, that of Harrison as investor and Welsh as guide and advisor,” and tended to sustain the contention of the existence of a confidential relationship between them. The copy of this letter was admitted in evidence after Harrison had testified that he had written and mailed it. He subsequently admitted that he had no personal knowledge of the mailing and its receipt was denied by Welsh. The chancellor sustained a motion to strike the letter from the record, saying in his adjudication:
    “To sustain his contention the plaintiff placed considerable dependence upon a letter dated July 18, 1910, from Harrison to Welsh, which Welsh denied having received, but which was admitted in evidence after Harrison had testified that it was written by him and duly mailed. Subsequent testimony on the part of Harrison himself as well as his employees indicated that neither Harrison nor any one else had any recollection of the mailing or delivery of this letter. The practice in Harrison’s office seems to have been to place letters upon a table or desk, where they were lifted by letter carriers. When they were not so taken by the carriers, they were deposited in one of several mail-boxes in the vicinity, either by Mr. Frey, plaintiff’s secretary, or by Huddat, the typewriter, who is now deceased. The evidence of the plaintiff’s witnesses, however, indicates that letters from Harrison to Welsh were at times delivered personally by either Frey or Huddat. There was no evidence to the effect that this letter had been postage-stamped, or whether it was forwarded through the mails or delivered personally. So that there is no evidence to show a prima facie delivery of this letter to the defendant; and the motion of the defendant to strike out its admission must be allowed and the letter not considered as evidence. The rule in Pennsylvania is that a letter, properly addressed, with prepaid postage, deposited in a post-office or in a letter-box or given to a letter carrier, raises a presumption that it was received by the person to whom it was addressed: Pearce v. Langfit, 101 Pa. 507; Whitmore v. Insurance Co., 148 Pa. 405; Neubert v. Water Co., 211 Pa. 582. Some courts have held that this presumption may arise from the course of business or custom of the sender’s office, or the contents of a merchant’s letter book; but the courts of Pennsylvania have not yet so held, and we know of no court that has gone to the extent of holding that such presumption arises where the practice is to forward some mail through the regular postal channels and to deliver some by messenger; and there is no evidence indicating how the letter in question was sent, or that it was actually delivered.”
    The chancellor dismissed the bill and imposed the costs on the plaintiff. To this action exceptions were taken.

      Powell, Ludlow & Soheaffer, for plaintiff.

      Bell, Trinkle & Bell, for defendant.
    April 12, 1928.
   Henry, P. J., 52nd judicial district, specially presiding,

This case is now before the court for the consideration of fifty-nine exceptions filed to the findings of fact, conclusions of law and the decree nisi entered by the chancellor.

The plaintiff submits that these exceptions involve the following four questions: (1) Can the court reverse the findings of a chancellor? (2) Wasi there a confidential relationship between the parties? (3) What was the bearing upon this relationship of the admissibility of the letter of July 18, 1910? (4) Did Welsh, in connection with his business of buying and selling bonds for his own account, have any special learning or means of knowledge not available to Harrison?

In support of the first question, authorities are submitted to the effect that the court in banc and the appellate courts will reverse the findings of a chancellor where they are not supported by evidence or where they are clearly ■erroneous, citing, among others, Deaver v. Slane, 271 Pa. 317, and Crick v. Paull, 287 Pa. 431, 435. We are fully in accord with the law as laid down in these decisions and might add that not only the appellate courts and the court in banc, but the chancellor himself, should reverse findings where they are not supported by the evidence or where they are erroneously made. It may be added, the judges who sat as a court in banc at the argument upon these exceptions are in accord with the conclusions now reached.

Upon a careful review of the evidence with the argument of the plaintiff in mind, we are convinced that the findings are not only supported by evidence, but by a preponderance of the evidence, and to a great extent by the testimony of the plaintiff himself, and that the findings were not erroneously made. If we read the plaintiff’s argument aright, then some stress is laid upon the fact that the plaintiff testified there was a confidential relationship existing between himself and the defendant, that he relied upon the judgment and advice of the defendant, and that the defendant had knowledge of securities not possessed by or available to the plaintiff. It is true the plaintiff did make some such statements, but they were conclusions of fact which were for the court, and those conclusions were not sustained by the evidence in the case or by the testimony of the plaintiff, in that he testified, and with some degree of pride, that, although seeking advice, he exercised independent judgment in making investments and that he invested in securities against the express advice and reasoning of the defendant.

The second question involved in this argument is whether a confidential relationship existed between the plaintiff and defendant. There admittedly was no such relation of trust and confidence as arises out of the situation of lawyer and client, physician and patient, priest and parishioner, trustee and cestui que trust, among others; but the contention is that such relation arose out of the transactions and business relations between the plaintiff and defendant. Exception is taken to'the court’s findings and reasons therefor as being erroneous, because of the consideration of the length or period over which the dealings between the parties extended, the magnitude of these dealings and the comparatively infrequent advice or suggestion of any trust or confidence upon the part of the plaintiff. It is true that in reaching the conclusions on the facts the court did consider the whole period of time, covering about thirty years, and did not restrict the consideration of this question to a period of ten years or more over which certain letters passed between the parties or written requests were made by the plaintiff upon the defendant relating to investments and to advice given by the defendant to the plaintiff with reference to investments, much of which had no relation to the business of the defendant or the securities he sold or offered to sell to the plaintiff. The chancellor considered all the evidence bearing upon this question up to the time of the severance of business relations. Nor do we think the chancellor misconceived what was essential to establish the relation of trust and confidence when the seventh finding of fact was based upon a conclusion that no such relation of trust and confidence had been established as to indicate that the mind of Harrison was dominated by that of Welsh in the making of investments or that Harrison was subservient to or dependent upon Welsh.

In Frey’s Estate, 223 Pa. 61, 64, it was held that “if the vendor was thoroughly acquainted with every fact which it was necessary for him to know; if he was twenty-one years of age and of sound mind; if there were no circumstances which gave the vendee an improper control over him amounting to mental imprisonment; if the vendor behaved honestly and the vendee was able to go and look with a free mind, with his eyes open, then the one had a right to sell and the other to buy on any terms they saw proper to agree upon.”

In Leedom et al. v. Palmer et ux., 274 Pa. 22, it was held that the confidential relation “appears when the circumstances make it certain that the parties do not deal on equal terms, but, on the one side, from overmastering influence, or, on the other, weakness, dependence or trust justifiably reposed; in both an unfair advantage is possible;” and, again, on page 26 of the same opinion, “where undue influence and incompetency do not appear and the relation between the parties is not one ordinarily known as confidential in law, the evidence to sustain a confidential relation must be certain; it cannot arise from suspicion or from infrequent or unrelated acts.”

We adhere to the conclusion reached in the seventh finding of fact, which is, in effect, that where there is no such situation recognized as creates a confidential relation in law, there must be some evidence indicating that there was some domination by one over the mind of the other or some subservience or dependence of the mind of one on that of the other.

The third question is whether the letter of July 18, 1910, was properly rejected. The conclusion of the chancellor was that letter books or copies of letters are inadmissible in evidence as prima facie evidence of their being received by the sendee, without some evidence indicating that they were deposited in the usual channels for transmission by mail. The authorities cited in the former opinion of the court amply sustain the position and conclusion of the chancellor. The plaintiff places some reliance upon Huckestein v. Kelly & Jones Co., 152 Pa. 631, in which there was evidence to prove that the letter was mailed or sent, and this decision must be taken in connection with that in the same case of Huckestein v. Kelly & Jones Co., 139 Pa. 201, in which one of the grounds of reversal was the admission of copies of letters without proof that the originals were received by the parties to whom they were addressed, or that they had been mailed to them; the court held that “they were not competent evidence for any purpose and their admission was error.”

Assuming, however, that letter books, or the custom of an office with reference to the sending out of mail, can be offered as prima facie evidence of such mail being received by the party to whom [it is] addressed, the evidence of the plaintiff fails, in that it is not established that there was an invariable custom with reference to the mail from the plaintiff’s office. The evidence in this respect was that some mail, not all, was deposited on a table where some of it, not all, was taken by the mail carriers, and what was not so taken was deposited in the mail-boxes by either the plaintiff’s secretary, Frey, or by the typewriter, Huddat, who is now dead. Some letters addressed to the defendant were not sent through the mail, but were delivered personally either by Frey, the secretary, or by Huddat, the typewriter, who was not living at the time of the trial. There was no evidence showing, or tending to show, how this letter of July 18, 1910, was sent, whether by messenger or through the mails, or that it was ever received by the defendant. On the other hand, the defendant testified that he never received it. We think the letter was inadmissible and properly rejected.

The fourth question involved in the argument is whether Welsh, in connection with his business of buying and selling bonds for his own account, had any special learning or means of knowledge not available to Harrison. The evidence disclosed that the defendant, Welsh, made a special study of, the securities which he offered for sale and suggested to the plaintiff such special study and the knowledge derived therefrom. He testified as to his examination of the records of mortgages as bearing upon the conditions attached to securities he sold and as bearing upon their security or value; but there was nothing in the case to indicate that the means of knowledge or the sources of information from which the defendant acquired this knowledge were- not as open to Harrison as to Welsh; and this being so, the one with such special knowledge as affecting values was not bound to disclose it to the other, who had neglected to avail himself of the. means of information which were open to him.

All of the questions involved in the argument upon these exceptions must be determined adversely to the plaintiff and the exceptions must be overruled and a final decree entered.

Final decree.

And now, to wit, April 12, 1928, upon consideration of the foregoing case, it is ordered, adjudged and decreed as follows:

1. All the exceptions of the plaintiff taken to the findings of fact and conclusions of law and to the decree nisi entered by the chancellor, being numbered from 1 to 59, both inclusive, are overruled and dismissed.

2. The bill of the plaintiff is hereby dismissed.

3. The costs of this proceeding are directed to be paid by the plaintiff.

4. The prothonotary is directed to notify the parties, or their counsel of record, of the entry of this final decree.


author: Reno, P. J.,

text:
    Dery’s Appeal.

      Taxation — Assessments—Appeals—Valuation—Ratio of assessed value to ma/rket value — Evidence.
    1. On an appeal from an assessment for county taxes, a prima facie case is made out when the county produces in evidence the assessment books, and the burden is then on appellant to overcome the prima facie case and to show that he was aggrieved by the valuation so fixed.
    2. In such case, the court is not to equalize assessments upon the basis of a difference in the ratio between market and assessed values existing in a few neighboring tracts; it can take into consideration only the uniform standard of value throughout the county.
    3. The court may refuse to reduce the assessment where the appellant has failed to show the average ratio which market value bears to assessed value throughout the county, even though the assessors had agreed to assess properties at 50 per cent, of their market value, if it does not appear whether the meeting of the assessors comprised the assessors of the entire county; and this is especially so where, under appellant’s proof, it appears that other properties in appellant’s immediate neighborhood were likewise assessed at their market value.
    Appeal from county assessment. C. P. Lehigh Co., Jan. T., 1928, No. 129.

      Butz, Rupp & Welty, for appellant.

      James F. Henninger, County Solicitor, for county.
    Dec. 12, 1927.
   Reno, P. J.,

The Dery property is assessed at $75,000. On appeal, a prima fade case was made out when the county introduced in evidence the assessment books and the burden was then on appellant to overcome the prima fade case and to show that she was aggrieved by the valuation so fixed: Washington County v. Marquis, 233 Pa. 552; Pennsylvania Stave Co.’s Appeal, 236 Pa. 97; Kaemmerling’s Appeal, 282 Pa. 78; Lehigh Valley Coal Co. v. Northumberland County, 250 Pa. 515; Lehigh and Wilkes-Barre Coal Co.’s Assessment, 225 Pa. 272.

The appellant did not overcome the prima fade case thus established. True, she proved that, prior to making the assessment, the assessors, in meeting assembled, agreed to assess properties at 50 per cent, of their market values, but she failed to show whether the meeting comprised the assessors of the entire county or only of the Borough of Catasauqua. Nor is this item of great value'in the determination of the case; for appellant's proof is that, notwithstanding the agreement, other properties in appellant’s immediate neighborhood were, as will presently appear, likewise assessed at their market value.

She also produced evidence to the effect that the market value of her property was approximately $33,000 to $35,000. One of the witnesses was the trustee in bankruptcy of her husband’s estate, from whom she purchased the property. But he disclaimed knowledge of market values, and the circumstances under which the property was sold in the bankruptcy court were such that the price there secured cannot be accepted as a basis for estimating its market value: Cf., Kaemmerling’s Appeal, supra. The other witness fixed the market value at $35,000, hut his evidence is opposed to that of the assessor, an older man with twelve years’ experience as assessor, and we prefer to rely upon the testimony of the assessor.

She also produced evidence tending to show that other properties in her immediate neighborhood were assessed at figures less than the market value. The evidence upon this point is unsatisfactory. Appellant’s witness does not fix the market value of those properties in figures, but compares them with appellant’s property and testifies that they are worth more or less than the appellant’s home. Of course, upon that basis, we cannot determine the market value of the properties in the neighborhood and cannot ascertain the ratio between the market and assessed value. Moreover, the same evidence shows that some of the properties, notably the Elverson, McKee and Phelan homes, are assessed at the market value. But even if appellant had succeeded in showing that other properties in her neighborhood or in her ward, or even in the borough, had been assessed at less than the market value, we would not be warranted in reducing her assessment. On an appeal, the court is not to equalize assessments upon the basis of a difference' in the ratio between market and assessed values existing in a few neighboring tracts. It can .take into consideration only the uniform standard of valuation throughout the county: Mineral Railroad and Mining Co. v. Northumberland County, 229 Pa. 436; 241 Pa. 339; Scott’s Petition, 231 Pa. 311. The comparison is to be made with the generality of property of the same class and not with a single assessment or a few assessments, and appellant having failed to show the average ratio which market value bears to assessed value throughout the county, her appeal fails.

Now, Dec. 12, 1927, the appeal is dismissed; appellant to pay costs.

Prom Edwin L. Kohler, Allentown, Pa.


author: Fp.onefield, P. J.

text:
    Parker v. Swarthmore Chautauqua Association.

      Interpleader — Adverse claimants — When interpleader will lie — Real estate brokers — Claimcmts for commissions.

    1. Interpleader will not lie if the stakeholder has incurred some personal obligation to either of the claimants, independent of the obligation of the other claimant, nor if he has a personal interest in the subject in controversy. He must show that he is a mere stakeholder without any rights of his own to be litigated.
    2. Where two real estate brokers claim commissions for the sale of real estate, the claims being independent of each other and upon express contracts, the owner is not entitled to a decree requiring the claimants to interplead.
    Petition and rule for interpleader. C. P. Delaware Go., March T., 1927, No. 2370.

      Albert J. Williams, for plaintiff.

      Clarence Myers and Claude C. Smith, for defendants,
   Fp.onefield, P. J.

The defendant presents its petition for an interpleader and for payment into court of the money it owes, to either the plaintiff or to Wilson & Company, and sets forth that the plaintiff brought suit against it for the recovery of $975, with interest, for commissions for the sale of real estate in Swarthmore; that William H. Wilson & Co. orally claimed from the defendant the same sum for commissions for the sale of the same real estate; that when settlement was made for the transfer of said property the commissions were retained by defendant from both claimants; that defendant has no interest in the said money and desires to pay it to the party legally entitled thereto, and prays that an issue be directed between the plaintiff and William H. Wilson to determine which is entitled to the said sum, and that the defendant be permitted to pay the said money into court.

The plaintiff answers the above petition, that the defendant specifically agreed to pay him for effecting the sale; that the claim of William H. Wilson & Co. is for a broker’s commission, based on the claim that they introduced the purchaser to the defendant several months before; and that the plaintiff’s claim is on a special contract for effecting the sale, which was effected to the purchaser by the plaintiff after defendant had received notice of the Wilson claim without so telling the plaintiff. The plaintiff deneis that the claim of Wilson is for the same money, for the reason above stated. He denies that Wilson intends to bring suit, and alleges that it is immaterial whether defendant is liable to be put to the expense of defending two suits and to be subject to the risk of being compelled to twice pay said amount.

The case was argued on petition and answer: Dohnert’s Appeal, 64 Pa. 311.

Under the circumstances, the claimants have distinct contracts and different causes of action, and, hence, cannot be compelled to settle them between themselves in an interpleader, and the petitioner, having two separate and distinct contracts with the claimants, has rights of his own to be litigated.

In Bridesburg Manuf. Co.’s Appeal, 106 Pa. 275, it is stated: “We think it is well settled, both in England and in this country, that a bill of interpleader cannot be maintained by a plaintiff who has a personal interest in the subject in controversy. He must show that he is a mere stakeholder, without any rights of his own to be litigated. The object of the proceeding is to determine to which of several claimants the plaintiff shall pay a certain debt or duty about which there is no dispute except as to the person entitled to receive it, so that when their respective rights are settled nothing further remains in controversy. ... If he has a contest of his own with the several claimants, he cannot settle it by this form of procedure. . . . Whenever it appears that there is a substantial controversy between the plaintiff and the defendants in regard to the extent of the liability of the former or the amount of his indebtedness, the plaintiff’s right to his remedy is at once determined, for he cannot bring the defendants into equity to settle a dispute with himself under the pretense of compelling them to settle one between themselves:” De Zouche v. Garrison, 140 Pa. 430.

Interpleader will not lie if the stakeholder has incurred some personal obligation to either of the claimants independent of the obligation to the other claimant, because such claimant would in that event have a claim against him which could not be settled in litigation between the claimants: 33 Corpus Juris, 439; 15 Ruling Case Law, 223; 10 L. R. A. (N. S.) 758; Warrington v. Mengel, 41 Pa. Superior Ct. 362; McSorley v. Coyle, 40 Pa. Superior Ct. 560.

The petitioner must not have any rights of his own to be litigated: Bechtel v. Sheafer, 117 Pa. 555.

I know of no statutory provision allowing the petitioner’s counsel fees, and in the absence of one, they may not be allowed: Colonial Trust Co. v. Scranton Life Ins. Co., 30 Dist. R. 954.

And now, July 28, 1927, the rule to show cause why William H. Wilson & Co. and Charles Parker should not interplead as to the subject-matter of the action in the above suit be and it is hereby discharged.

From William R. Toal, Media, Pa.


author: Wickersham, J.,

text:
    Shearer v. Mutual Fire Insurance Co. of Hummelstown, Pa.

      Practice, C. P. — Statement of claim — Demurrer.
    1. Where a defendant files an affidavit of defense in the nature of a demurrer, the facts appearing from the plaintiff’s statement of claim must be regarded as true.

      Insurance •— Fire insurance — Cancellation of policy — Reinstatement of policy — Payment by check.

    2. Where an insurance company agrees to reinstate a policy which has been canceled for non-payment of an assessment if the insured will send to the company the amount of such assessment, the insured is bound to send to the company cash or legal tender to the amount of the assessment.
    3. In such case, the writing of a check and the depositing of it in a letter-box is not a compliance with the company’s requirement, and especially is this the case where the insured does not aver that the check was received by the company and accepted by it in payment of the assessment.

      Insurance — Fire insurance — Defenses—Estoppel.

      4. Where an insurance company has refused to pay a policy for a reason stated, it cannot thereafter, in a suit upon the policy, allege any other reason for nonpayment, and especially is this so where the insured has incurred expense and brought suit in the belief that the only objection to payment was that originally stated.
    Affidavit of defense in lieu of demurrer. C. P. Dauphin Co., Jan. T., 1927, No. 398.

      I. B. Swartz, for plaintiff; Herbert A. Schaffner, for defendant.
    Oct. 17, 1927.
   Wickersham, J.,

In this action, the plaintiff seeks to recover from the defendant the loss which he alleges he sustained by a fire which destroyed certain of his property, which property he claims was insured against loss from fire by the defendant corporation. The defendant filed an affidavit of defense in the nature of demurrer.

The following facts appear from the plaintiff’s statement, which, under the pleadings, must be regarded as true, for the purpose of determining the question involved: Davis v. Edmondson, 261 Pa. 199. On April 3, 1925, the defendant corporation issued its contract of insurance to Edward G. Shearer, the plaintiff, against all direct loss and damage by fire, to the extent of $2000. The plaintiff failed to pay the 1925 premium or assessment prior to the said loss by fire, whereupon he was notified by the company that, if the assessment was not paid within five days, the policy would be canceled. Pursuant to said notice, the defendant notified the plaintiff that the policy was canceled. On May 18, 1926, the plaintiff wrote the defendant asking what was necessary for him to do to have the policy reinstated. In reply thereto, the company wrote him as follows (see Exhibit “C,” attached to plaintiff’si statement) : “In reply to your letter of May 18th, I beg to advise that if you will send us the amount of your 1925 assessment, $1.95, we will be glad to reinstate your policy. No new policy will be required.” Pursuant to said request, the plaintiff wrote a check in the amount of $1.96, enclosed it in an envelope addressed to the Mutual Fire Insurance Company of Hummelstown, Pa., stamped it, and gave it to his wife to put in the mail; that his wife, on June 10, 1926, deposited said letter with said check enclosed in the mail-box at Harrisburg, Pa., at Fourth and Peffer Streets. That the property described in said insurance policy was afterwards, on July 20, 1926, totally burned, consumed, damaged and destroyed by fire. This suit is brought, therefore, to recover the following losses: On grain, $31.75; on hay and straw, $200; on livestock, $115; on farming implements and vehicles, $200, making a total of $546.75. The plaintiff notified the defendant of the loss, but did not file a proof thereof, as required by the policy, because the defendant denied liability. The plaintiff filed an amended statement which does not materially alter the facts as we have stated them.

In paragraphs seven, eight and nine of defendant’s affidavit of defense raising questions of law it is alleged, inter alia: “Plaintiff admits the cancellation of said contract because of plaintiff’s failure to comply therewith . . . but alleges a renewal or reinstatement thereof, and, as proof thereof, offers Exhibit ‘C;’ that the allegations of fact set forth in paragraph ten of plaintiff’s statement of claim do not show sufficient compliance with requirements of defendant for reinstatement as set forth in Exhibit ‘C’ to work a renewal of the alleged contract; and defendant, therefore, avers that plaintiff’s, statement of claim clearly shows that the contract on which this action is attempted to be based was nullified by the acts and omissions of the plaintiff, and no sufficient facts tending to show a renewal of said contract or a waiver of plaintiff’s breach have been alleged in plaintiff’s statement of claim.”

It will be observed in Exhibit “C,” attached to plaintiff’s statement of claim, the defendant corporation notified the plaintiff that, if he would send to the defendant the amount of his 1925 assessment, $1.95, the company would reinstate his policy. We must take these words in their common and accepted meaning, which is that the plaintiff was to send to the defendant cash or legal tender. In reply to this demand on the part of the defendant, the plaintiff, in his statement of claim, says he wrote his check and mailed it to the company.

At the oral argument of this case before the court in banc, counsel for the plaintiff insisted that the action of the plaintiff in mailing his check was in full compliance with the demand of the company. He relies upon the case of Pennsylvania Lumbermen’s Mutual Fire Ins. Co. v. Meyers, 126 Fed. Repr. 352. In that case, however, the defendant wrote the plaintiff that, if he still desired the policy to be again put in force, he should send check for the full amount by return mail, which the plaintiff did the same day and before the destruction of the buildings insured. It was held: “Where an insurer offered to reinstate policies which had been canceled for failure of insured to pay premiums, provided insured would send check for the full amount of the premiums by return mail, and insured immediately sent the check and had ample funds in the bank to meet the same before the check could have been presented in the ordinary course of the mails, the fact that at the time the check was sent insured’s bank account was overdrawn did not render the check insufficient to constitute an acceptance of insured’s offer.”

Writing the opinion of the United States Circuit Court, it was said, by Coxe, Circuit Judge (page 353): “The unqualified acceptance by the one of the terms proposed by the other, transmitted by due course of mail, is regarded as closing the bargain from the time of the transmission of the acceptance. . . . The defendant, had it desired to do so, could have limited the time of the reinstatement of the policies to the actual receipt by it in Philadelphia of the letter and check, but this it did not do. The defendant’s proposal was a plain, unequivocal agreement to reinstate the policies when the check was deposited in the mails.”

It requires no argument to demonstrate that the facts in the case relied upon and the instant case are dissimilar. In the instant case, the defendant corporation demanded payment in cash. In the case from which we have quoted, the defendant corporation demanded payment by check. Had the plaintiff complied with the demand of the defendant in the instant case by sending cash instead of his check, we think Tayloe v. Merchants Fire Ins. Co. of Baltimore, 9 Howard, 390, 13 L. Ed. 187, would have been controlling. In the Tayloe case, the agent of the company instructed the applicant to send his check for the premium. Held, that the transmission of the check by mail was a sufficient payment of the premium within the terms of the policy.

Counsel for plaintiff further contended at the oral argument that, a check having been mailed to the defendant corporation, the legal presumption was that the company received it: Tanner v. Hughes & Kincaid, 53 Pa. 289; Callan v. Gaylord, 3 Watts, 321; Whitmore v. Insurance Co., 148 Pa. 405, and many other Pennsylvania cases which might be cited. We think this well-establish principle of law is not involved in the instant case. The plaintiff’s policy had been canceled for non-payment of an assessment. The defendant agreed to reinstate it if the defendant would send the amount of the assessment, to wit, $1.95, but the defendant company did not direct that it be sent by mail, nor did it agree that it should be sent by check; therefore, in writing and mailing his check, the plaintiff did not comply with the requirements of defendant corporation. Furthermore, it nowhere appears in plaintiff’s statement, nor is it alleged by him, that the check was received by the defendant company and accepted by it as payment of the assessment. On the contrary, the plaintiff’s statement alleges that, after the loss by fire occurred, the defendant refused to pay the loss because the assessment was not paid — see Exhibit “D” of plaintiff’s statement, wherein the defendant company wrote to the plaintiff: “I have taken this matter up with our executive committee and we are compelled to take the stand that, due to the fact that your policy was canceled on account of unpaid assessment for 1925, after due notice to you by registered letter, and that the policy has not been reinstated by payment of this assessment, we cannot pay for the loss sustained recently.”

It is further to be observed that there is no allegation in plaintiff’s statement that the defendant received the check referred to and agreed to accept it as payment of the 1925 assessment, or that the said check was paid and returned to the bank upon which'it was issued.

In Leas v. Hafer, 39 Pa. Superior Ct. 160, the affidavit of defense to an action on a promissory note which alleged that the “full sum due from the defendant to the plaintiff was paid ... ‘in checks, cash and notes,’ without giving the amounts, dates, places of the alleged payments or any circumstances relating thereto, and which did not allege that the checks and notes were ever accepted by the plaintiff or paid by the defendant,” was held to be insufficient. Writing the opinion of the Superior Court, it was said, by Henderson, J. (page 163) : “. . . There is the further objection that it is not averred that the plaintiff accepted the checks and notes referred to in payment of the note or in part payment thereof. Nor is it stated that the notes and checks were ever paid to the plaintiff by the defendant or by any other person. To make payment absolute, there must be an express agreement by the creditor to receive a note as such. Neither the defendant’s note nor the note of a third party amounts to payment on an existing debt unless accepted as such by the creditor. They are collateral security, or, at most, conditional payment of money,” citing cases.

To the same effect, see opinion by Mr. Justice Mitchell, in Philadelphia v. Stewart, 195 Pa. 314; Hummelstown Brownstone Co. v. Knerr, 25 Pa. Superior Ct. 465. This question also was before the Supreme Court in Philadelphia v. Neill & Lincoln Savings and Trust Co., 211 Pa. 353, wherein it was held: “To make a note or check payment absolute, there must be an express agreement by the creditor to receive it as such, and the burden of proving this is upon the debtor;” followed by the Superior Court in Wedmore v. McInnes, 69 Pa. Superior Ct. 220. See opinion of Kephart, J., page 222. We think these decisions are conclusive upon us.

We are of the opinion that, if this case would be tried before a jury and the plaintiff could only prove that which he alleges in his statement of claim, he would not be meeting the burden placed upon him by the last two decisions from which we have quoted, and the trial would result either in a compulsory non-suit or a directed verdict for the defendant.

It is further contended by the defendant that plaintiff did not comply with the provisions of the contract of insurance, even if held to be in force at the time of the fire. The policy provided that it was the duty of the insured to give immediate notice, in writing, to the defendant company of any loss or damage . . . and furnish a complete inventory of the destroyed, damaged and undamaged property, stating the quantity and cost of each article and the amount claimed thereon, and that the insured shall, within sixty days after the fire, unless such time is extended in writing, render to the company a proof of loss, signed and sworn to by the insured, stating certain requirements set forth in the policy; and “no suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless the complainant shall show compliance with all requirements of this policy, nor unless commenced within twelve months next after the fire.” It is contended by the defendant as a matter of law and on the allegations contained in plaintiff’s statement of claim, that the plaintiff was bound to comply with the conditions of the contract as to proof of loss and has by his own admissions not done so, and has, therefore, no right of action under said contract.

It is alleged in paragraph fourteen of plaintiff’s statement of claim that forthwith after the loss and damage to his property by fire, he gave notice thereof to the said defendant, whereupon said defendant sent an adjuster or-representative to the premises at which the loss occurred, after which the plaintiff was informed in writing by said company that it denied liability on account of said loss on the ground that the policy of insurance had been canceled. The plaintiff attached a copy of said letter to his statement, marked Exhibit “D.” Upon this letter (plaintiff’s statement, Exhibit “D”), the defendant company based its refusal to pay the loss sustained by the plaintiff to his property by' fire, upon the fact that the policy was canceled on account of the unpaid assessment for 1925, and that the policy was not reinstated by payment of this assessment.

Having refused to pay the policy for the reason above stated, we think the company cannot now allege any other reason for non-payment: Simmons v. Safety Mutual Fire Ins. Co., 277 Pa. 200. We quote from the opinion of Mr. Justice Sadler, beginning on page 203: “When a definite reason for declining to pay is asserted and the plaintiff thus led to believe it the sole cause and is misled to his injury, the company is estopped from thereafter setting up a different ground: Lebanon Mutual Fire Ins. Co. v. Erb, 112 Pa. 149; Pennsylvania Fire Ins. Co. v. Dougherty, supra, (102 Pa. 568); Zoller v. Hartford Fire Ins. Co., 272 Pa. 386.”

In Lebanon Mutual Fire Ins. Co. v. Erb, supra, it was held: “Waiver of the proof of loss required in a policy may be inferred from any act of the insurer evincing a recognition of liability or a denial of obligation exclusively for other reasons.”

See, also, opinion of Chief Justice Sterrett in McCormick v. Insurance Co., 163 Pa. 184, 193. In this case, it was held: “Refusal of an insurance company to pay a loss on a specified ground estops it from asserting other ground relieving it from liability of which it had full knowledge, where the insured has incurred expense and brought suit in the belief that the only objection was that stated.”

We think this ruling applies particularly to the case at bar. The plaintiff promptly notified the defendant company of his loss by the destruction of his property by fire. The company sent an adjuster to examine the premises. It thereafter notified him it would not pay the policy for a specific reason, whereupon he incurred the expense of bringing suit to establish his claim. We think the company is now estopped from setting up any other defense to the plaintiff’s claim than that mentioned in its letter attached to plaintiff’s statement and marked Exhibit “D.” We cannot, therefore, sustain the questions of law raised in the defendant’s affidavit of defense under paragraphs three, four, five and six.

We find nothing in the carefully prepared supplemental brief of plaintiff’s counsel which moves us to alter the views we have hereinbefore expressed or to require any further discussion.

We are of the opinion, therefore, that the plaintiff's statement of claim clearly shows that the contract on which this action is attempted to be made was nullified by the acts and omissions of the plaintiff, and no sufficient facts tending to show a renewal of said contract or a waiver of plaintiff’s breach have been alleged in plaintiff’s statement of claim. We, therefore, sustain the contentions of defendant as found in paragraphs seven, eight and nine of its affidavit of defense, and direct that judgment be entered in favor of the defendant.

From Homer L. Kreider, Harrisburg, Fa.


author: McConnel, J.,

text:
    Miller et al. v. Silk Service Stations et al.

      Equity — Nuisance—Gasoline tanks — Injunction.
    1. The storage of gasoline in automobile tanks in a borough or city is not a nuisance per se.

    2. Where a person has received a permit from the Bureau of Fire Protection to construct a gasoline tank in a borough under proper conditions, he will not be enjoined from such construction on a bill filed by nearby residents where the evidence shows that the actual injury to such owners is contingent and extremely doubtful and that the only injury will be a depreciation of the value of their property.
    3. Mere depreciation in the value of property in such case is not enough to authorize a court of equity to act by injunction, and especially is this the case where the plant is not even constructed or in operation, but merely started.
    Bill for injunction. C. P. Beaver Co., Sept. T., 1927, No. 5, in Equity.

      John A. Elliott, for plaintiffs; A. G. Helbling, for defendants.
    Aug. 5, 1927.
   McConnel, J.,

In this case, the plaintiffs, A. S. Miller and others, who are residents of the Borough of Beaver Falls, filed a bill in equity against the Silk Service Stations, Frank G. Garvin, proprietor, and Frank G. Garvin, on July 25, 1927, praying for a preliminary injunction, to be made permanent upon final hearing, to restrain the defendants from erecting and maintaining above ground upon certain premises in the Borough of Beaver Falls tanks for the storage of gasoline. A preliminary injunction was issued and a hearing fixed for Aug. 2, 1927, with the consent of all parties in interest. The hearing was held on Aug. 2, 1927, and testimony presented on the part of both plaintiffs and defendants; and the question is whether, under the evidence produced upon said hearing, the preliminary injunction should be continued or dissolved.

The evidence showed that the defendant has leased from the Pittsburgh & Lake Erie Railroad Company a small tract of land in the Borough of Beaver Falls, bounded on the northeast by the right of way of Pittsburgh & Lake Erie Railroad Company; on the southeast by Fifth Avenue; on the southwest by Twenty-first Street, and on the northwest by a considerable tract of vacant land owned by the Pittsburgh & Lake Erie Railroad Company. Upon the tract of land so leased, the defendant intends to erect three steel storage tanks having a capacity each of about 10,000 gallons of gasoline; also a pumping station for the purpose of unloading the gasoline from the tank-cars ; and intends to load tank-trucks with gasoline from the tanks, running it into the trucks by gravity.

The nearest tank to be constructed by the defendant to any public highway is 40 feet from the northern line of Twenty-first Street, which is a public highway in the Borough of Beaver Falls. The nearest dwelling-house to the tanks is one erected on the south side of Twenty-first Street, near the comer of Fifth Avenue, which is also a public highway in said borough; and this dwelling-house is located 100 feet from the nearest tank. There is another house on the northern side of Twenty-first Street, 143 feet from the nearest tank, and various dwellings on the western side of a 20-foot alley (which is called Thomas Alley, according to the evidence), and the nearest of these houses to the said tanks is 132 feet.

The district in which the tanks are to be erected and this station maintained is exclusively a residence district in the Borough of Beaver Falls, and it is alleged by the plaintiffs that the operation of thisi gasoline station at this place will greatly endanger the lives and property of the petitioners and others residing in proximity to said tanks, and that the maintenance of the same will be a common nuisance becaúse of the annoyance and distress to the plaintiffs' and those residing in the immediate neighborhood of this location, and that it will ruin the said district for residence purposes and materially depreciate the value of the plaintiffs’ properties.

The evidence as introduced by the plaintiffs showed that their properties would be considerably depreciated in value through the location of these storage tanks as proposed on account of the fear which persons would naturally have of explosion and fire which might arise from the storage and handling of gasoline at this place by the defendant, although this fact was denied by the defendants’ witnesses. The evidence also showed that an application had been made by the defendant to the Bureau of Fire Protection, Pennsylvania State Police, at Harrisburg, for the approval of this location for the storage and handling of volatile inflammable liquids, and, after a hearing was had before the State Fire Marshal, a permit, No. 31774, was granted to the defendant, allowing the construction above ground of three 10,000 gallons capacity tanks and one Viking twin rotary blind pump, or drawing-off device, at Twenty-first Street and Fifth Avenue, Beaver Falls, Beaver County, Pennsylvania, upon certain conditions enumerated in the permit as follows:

“(a) That the tanks be located at least 30 feet farther north and 10 feet east of the position as now shown on plan.
“(b) That unless the contour of the ground will prevail as a natural barricade against the spread of liquid, that suitable retaining wall or embankment be provided and maintained around the tanks to safely hold not less than 1£ times the capacity of the three tanks.
“(c) That all grass, weeds and vegetable growth on the property be cut down and so maintained.
“(d) That tanks be electrically grounded in approved manner.
“(e) That no less than three 2i gallons capacity chemical fire extinguishers, suitable for oil fires, be provided on the premises.
“(f) That entire property under lease be surrounded with wire mesh or equivalent fence or enclosure to prevent access thereto by unauthorized persons.
“(g) That approval is provisional that no buildings or structures, other than tanks and pump-house now proposed, be erected on the property leased, nor on adjoining property within 60 feet of the tanks.”

These conditions, as prescribed by the Bureau of Fire Protection, will have to be complied with, of course, by the defendant; otherwise the plaintiffs can at any time, upon complaint to the State Fire Marshal, prevent the maintenance and operation of the defendant’s station at this location.

There was no evidence introduced at the time of the hearing in this case which would show that there is any real danger arising to any of the properties of the plaintiffs by reason of the maintenance and operation of this plant; but there is a natural feeling of apprehension of danger which makes this plant obnoxious to the plaintiffs arid would naturally deter any person from wanting to purchase property or hold property in this vicinity, and we have every sympathy with the plaintiffs in this case. But the rights of an owner of property to the use, improvement and development of it cannot be interfered with unless the owner is doing something unlawful thereon or which will unlawfully do injury to the property of some other person. This feeling and principle is exceedingly well-expressed by Judge Ferguson in the case of Braun et al. v. Atlantic Refining Co., 27 Dist. R. 451, as follows:

“In this case, we have presented the familiar problem of apprehension among real estate owners and occupiers over the proposed use of neighboring real estate. When it is intended to erect a new structure in the vicinity of private residences, unless the newcomer acts in accordance with the wishes of the neighbors, the interposition of a court of equity seems at once to be required. Few persons have escaped annoyance of this kind. Owners of residences erect private garages in the rear or at the side of their properties which are more or less offensive to adjoining owners. Others, in residential sections, ignore building lines mutually and tacitly agreed upon, but not obligatory, or establish levels and grade lines differing from those adopted by others. Architectural eccentricities often offend, and frequently there is introduced into a residential neighborhood buildings to be used for commercial purposes. These changes, when they occur, are exceedingly offensive and annoying, but it is usually conceded that, if protest fails, the right and privilege of the owner to do what he will with his own property cannot be molested. In the case at bar, the trial judge has full appreciation of the mental attitude of the plaintiffs and understands their fears.
“Certain fundamental principles are involved, however, which must not be lost sight of. A man has the right to erect any sort of structure on his land and to use it for any lawful purpose, even though his act in a measure changes the character of the neighborhood. Unless there is a restriction binding the land, there can be no question of this right. If the use of the structure, however, should create a nuisance, the aid of the court may be invoked to abate it. In the determination of that question, the character of the neighborhood is an important element for consideration. If the use is not a nuisance, the courts cannot interfere.
“With these considerations in mind, a chancellor, when asked in advance to prohibit the use of land for a certain purpose, has before him just one question to be answered: Will the use proposed, with certainty, constitute a nuisance? He is not to interfere because he thinks a nuisance might result. If there is doubt in his mind, the matter must be left for the future to demonstrate as a matter of fact. He may not regard apprehensions unless those apprehensions are well grounded and founded on experience.
“When it is alleged that a nuisance exists, the burden rests on him who makes the allegation to prove it. . . .”

The plaintiffs ask us to issue an injunction to restrain the defendant from using his property for a purpose which is legal and which he deems is advisable and within his rights. While we think that this plant ought not to be located in this neighborhood, still we must comply with the law and allow him whatever rights he has secured or is entitled to by reason of his acquiring the property upon which the plant is to be located. And the question is whether, under the circumstances of this case, we can issue an injunction against the defendant.

There are many useful employments which must be pursued in and near towns and cities which may produce some discomfort, and even some injury, to those nearby; but it does not follow that a chancellor has the right to enjoin the carrying on of such businesses; and to entitle a plaintiff to an injunction, he must make out a plain case of injury and damage. See Huckenstein’s Appeal, 70 Pa. 102, which was a bill in equity to restrain the operation of a brickworks in Allegheny County, it being alleged that the operation of the works was injurious to vegetation on the land of plaintiff and that it would destroy his vineyard and orchard, plants, trees and shrubbery, would render the land unhealthy and unfit for his residence and depreciate the value of his land, and that plaintiff would lose all of the improvements he had made thereon, and in that case an injunction was refused, the court saying: “If the injury be doubtful, eventual or contingent, equity will not interfere by injunction.”

In the present case, while there is evidence that the value of the plaintiffs’ real estate will be decreased, that is really only a sentimental matter, and the actual injury or damage which the plaintiffs suffer is contingent and extremely doubtful.

In the case of Sparhawk v. Union. Passenger Ry. Co., 54 Pa. 401, which was an application for an injunction to restrain the operation of a street-railway company on Sunday, Mr. Justice Thompson, in delivering the opinion of the court, said, inter alia: “Injury to property, with reference to its reasonable and ordinary use, by continuous hurtful acts, constitutes a nuisance, undoubtedly, and may properly be the subject of equity jurisdiction, not only to redress the injured party by restraining the injurious acts, but, in some cases, by compelling the wrongdoer to make amends for the injury done. In such a case, the applicant for redress by injunction must establish a clear case of ‘irreparable injury’ likely to ensue as the consequence of the continuance of such acts.”

There is no evidence in this case of any irreparable injury to the land of the plaintiffs, but merely evidence that the location and operation of this station will depreciate the value of their property. There are many buildings which can be constructed and many businesses carried on close to a person’s property — for instance, a livery stable may be located on adjoining property— which may considerably depreciate the value of adjoining real estate; or certain tenants may be installed in a building which will have the same effect; or the character of the building constructed may be such as to seriously depreciate the value of adjoining properties. But that is not enough to authorize a court in equity to grant relief. In the case of Houghton et al. v. Kendrick et al., 285 Pa. 223, complaint was made about the construction and operation of a stable in a residential district in the City of Philadelphia, and Mr. Justice Simpson, in delivering the opinion of the court, well stated the law with regard to such construction, as follows: “A stable, to be a nuisance, must materially interfere with another in the enjoyment of his property. It is not sufficient that it inconveniences him or that it, to some extent, depreciates the value of his property. ... In the determination of the question of nuisance vel non, location and surroundings are of the first importance. But it cannot be said, as a matter of law, that a stable cannot be kept in the residence portion of a large city in such a manner that it will not be regarded as a nuisance: 20 Ruling Case Law, 414-15.”

Mere depreciation in the value of property, therefore, is not enough to authorize a court of equity to act by injunction, and especially in a case of this kind where the plant is not even constructed and in operation, but merely started. If, after this plant has been constructed, it turns out that it is an actual nuisance to the owners of adjoining property, then the maintenance and operation of it under such circumstances could be, and would be, restrained by the court; but it must be shown that it is an actual nuisance and an actual injury and damage to the owners of the adjoining properties.

The storage of gasoline in suitable tanks is not a nuisance per se. See 29 Cyc., 1177, § 8; Whittemore v. Baxter Laundry Co., 52 L. R. A. (N. S.) 930, which is a case in the Supreme Court of Michigan, wherein the court said: “We may grant that the storage of gasoline on premises adjacent to or adjoining the premises of another is not a private nuisance per se. It might, however, become such, considering the locality, the quantity and the surrounding circumstances, and would not necessarily depend upon the degree of care used in its storage: Heeg v. Licht, supra; 29 Cyc., 1177.”

And we can find no cases in Pennsylvania which hold that the maintenance and operation of such a storage station as is contemplated by the defendant in this case is a nuisance per se or that it can be restrained or prevented by injunction. The latest case which has been decided in the Supreme Court of this State is The Penna. Co. for Ins. on Lives and Granting Annuities, Trustee, v. Sun Co., No. 110, Jan. Term, 1927, opinion by Judge Kephart. The syllabus of this case is given in 9 D. & C., Advance Reports for July 12, 1927 [290 Pa. 404], as follows: “Equity will not enjoin the construction, over 80 feet from the boundary line of plaintiff’s residential property, of 75,000-gallon tanks for the storage of oil or its by-products, unless actual danger of an irreparable injury to plaintiff’s property is alleged and proved.”

This decision, we take it, is binding upon this court, as the plaintiffs’ property in this casei is 100 feet from the nearest tank, and in the case last referred to, decided by the Supreme Court, it was only 80 feet from a 75,000-gallon tank. This decision of the Supreme Court is also in line with the case of Manorville Borough v. Flenner, 87 Pa. Superior Ct. 84, and affirmed by the Supreme Court in 286 Pa. 103, where the Supreme Court affirmed the finding of the court below that storage of gasoline in unlimited quantities in properly-constructed and equipped tanks in a borough is not dangerous to life or property, and that it can be and is stored in large quantities in thickly-populated districts without danger, and that the storage of 36,000 gallons of gasoline does not create a fire hazard to the traveling public or to the inhabitants of the plaintiff borough, and that if the gasoline is stored in modem, scientifically-constructed tanks, it is not dangerous.

In view of these decisions of the Supreme Court of this State, we cannot see, under the evidence in this case, how we can restrain the defendant from constructing and operating upon the property in question the plant which he has started to construct; and we are not satisfied that any damage will be sustained by the plaintiffs or the public through the operation of the plant in question. The evidence showed that the same kind of a plant has been in operation for a number of years in a thickly-settled residential district of the Borough of Ambridge without any danger or inconvenience to the adjoining property owners; and the court has knowledge of a plant of the same character which has been constructed and in operation for a number of years by the Gulf Refining Company on and near Fifth Street, in the Borough of Beaver, without any inconvenience or damage, so far as we know, to any of the adjoining property owners.

Order. — Now, Aug. 5, 1927, the preliminary injunction issued in this case is dissolved.

Prom Wm. P. Sehutte, Beaver, Pa.