author: Heck, P. J.,

text:
    Thomas McCabe Industries v. Pennsylvania Railroad Co.

      Jones & Lewis, for plaintiff.

      F. E. Baldwin and W. K. Sweatland, for defendant.
    April 20, 1928.
   Heck, P. J.,

In this action the plaintiff seeks to recover from the defendant damages to three carloads of furniture which, it is alleged, were caused by the negligence of defendant.

At the trial, it was disclosed that on Feb. 18, 19'26, one car, and on Feb. 20, 1926, two cars, of furniture were delivered to the Coudersport & Port Allegany Railroad, the destination being Pittsburgh. The cars were promptly delivered to the Pennsylvania Railroad Company at Port Allegany, and a few days afterwards were delivered to the consignees at Pittsburgh, the route from Port Allegany to Pittsburgh being over the railroad lines of the defendant.

Immediately upon their arrival the cars were opened, when it was discovered that the finish of the furniture in all the cars was damaged. It seems to be agreed that the damage was to the varnish or finish on the furniture and was caused by moisture.

At the trial, the plaintiff showed the loading of the furniture, the delivery of the cars to the defendant company and the damage. The plaintiff by so doing made out a prima facie case of negligence against the defendant under the rule as stated by Henderson, J., in the case of Vuille v. Pennsylvania R. R. Co., 42 Pa. Superior Ct. 567: “A presumption of negligence arises which is sufficient to justify a recovery in cases where there is no other proof than of the delivery of the goods to the carrier in good condition and their arrival at the point of destination in a damaged condition: American Express Co. v. Sands, 55 Pa. 140; Grogan & Merz v. Adams Express Co., 114 Pa. 523; Buck v. Pennsylvania R. R. Co., 150 Pa. 170, and the rule seems to prevail generally that when goods are delivered to the first carrier in good order and are afterwards injured, the presumption, in the absence of anything to the contrary, is that they were-injured by the last carrier: 4 Elliott on Railroads, § 1450; 5 Thompson on Negligence, § 6569; Cote v. N. Y., N. H. & H. R. R. Co., 182 Mass. 290. At the conclusion of the plaintiff’s evidence, the burden was, therefore, on the defendant to overcome the presumption of negligence. . . . The presumption of negligence arising from the plaintiff’s evidence could, of course, be rebutted, but this was the defendant’s burden, and whether it was successfully done was a question for the jury under all the evidence.”

The defendant assumed the burden of overcoming the presumed negligence. It introduced evidence tending to show the imperfect and unworkmanlike finish of the furniture at the factory of the plaintiff and also that the crating in which the furniture was packed was not dry or properly seasoned and was unfit for the purposes of crating, and that this caused or contributed to the damage complained of.

There was also offered in defense the explanation that the damage to the furniture was caused by sweating or moisture condensation, for the control of which there was no practical method known to railroad companies.

The jury returned a verdict in favor of the plaintiff, and defendant now moves for a new trial. Three reasons are set forth to sustain the motion:

1. After-discovered evidence.

2. That the verdict of the jury was against the weight of the evidence, the charge of the court, and a total disregard of the uncontradicted evidence offered by the defendant.

3. That the court erred in answering defendant’s third point in charging the jury.

Considering these complaints in their order, the ground for a new trial based upon the after-discovered evidence is contained in an affidavit made by F. E. Baldwin, one of the counsel for defense. It set forth that witnesses have been found who will testify relative to the damp or wet condition of the lumber used for the crating of the furniture, alleging that this evidence was unknown to the defendant at the time of the trial and by reasonable diligence could not have been obtained by it.

By stipulation filed, it was agreed that if the witnesses had given evidence under the rule to take depositions, they wouldv testify to the facts as set forth in Senator Baldwin’s petition and affidavit.

Certain well-established rules have been laid down by our courts relative to after-discovered evidence as a reason for a new trial. In Moore v. The Philadelphia Bank, 5 S. & R. 41, Chief Justice Tilghman says: “A new trial has been moved for on the ground of material evidence discovered since the trial. Motions of this kind ought to be received with great caution, because there are few cases tried in which something new cannot be hunted up, and because it tends very much to the introduction of perjury to admit new evidence after the party who has lost the verdict has had an opportunity of discovering the points both of his adversary’s strength and his own weakness. It is, therefore, incumbent on him who asks for a new trial on this ground to satisfy the court, first, that the evidence has come to his knowledge since the trial; second, that it was not owing to want of due diligence that it did not come sooner, and, third, that it would probably produce a different verdict if a new trial were granted.”

In addition to this, the Supreme Court, in the case of Com. v. Flanagan, 7 W. & S. 415, states: “Thus a great deal of testimony has been given which does not establish independent facts material to the issue; but its only effect is to impeach the credit of some of the witnesses examined on the former trial. But the rule of law is that the testimony must go to the merits of the case and must not be merely for the purpose of impeaching the testimony of the witnesses. For newly-discovered evidence discrediting witnesses who testified on a former trial, a new trial will never be granted: Graham on Trials, 496; 10 Wendell, 492. So cumulative evidence, by which is meant additional evidence to support the same point, or where it is of the same character as evidence already produced, is not sufficient to induce the court to grant a new trial: 10 Wendell, 285. Some of the evidence is cumulative merely, which, of course, would be a decisive objection to the motion on that ground.”

Considering the defendant’s motion in the light of these decisions, it is recalled that at the trial it swore two witnesses as to the character of the lumber used in the crating, which testimony was met by a number of witnesses, sworn in rebuttal by the plaintiff, whose testimony tended to establish a state of facts differing materially from those testified to by the witnesses of the defendant. The new evidence offered is clearly cumulative.

Nor are we convinced that this testimony could not have been found had the defendant used due diligence in its search for evidence to support its defense that the damage to the furniture was caused by the wet or damp condition of the crating.

We do not think the business of the plaintiff as a furniture company was hedged about with such secrecy that its employees whose business it was to crate the furniture and handle the lumber for that purpose could not have been found by the use of due diligence, and, further, if the newly-discovered evidence were presented at another trial, considering the nature and character of the evidence of the plaintiff opposed to it, we very seriously doubt whether another jury would render a different verdict. It appears to us very clear that a new trial cannot be granted on the ground of after-discovered evidence.

The second reason refers to the disregard by the jury of the evidence presented by the defendant explaining the injury to the furniture by reason of sweating or precipitation on it of an undue amount of moisture.

Counsel for defendant calls our attention to the well-established rule as stated by Justice Mitchell in Lonzer v. Railroad Co., 196 Pa. 610, as follows: “It is further said that the testimony as to the posting of the notice and the deceased’s knowledge of it was by witnesses for the defense and their credibility was for the jury. Such, certainly, is the general rule. The jury are not bound to believe every story that a witness or -witnesses are willing to swear to simply because.no other witness contradicts it. If its inherent improbability or irreconcilability with facts shown or admitted are such that it does not command their assent, the jury may disregard it. But this rule is founded on common sense and knowledge of human nature and must be limited by the same standards. When the testimony is not in itself improbable, is not at variance with any proved or admitted facts or with ordinary experience, and comes from witnesses whose candor there is no apparent ground for doubting, the jury is not at liberty to indulge in a capricious disbelief. If they do so, it is the duty of the court to set the verdict aside.”

Also, in Holden v. Pennsylvania R. R. Co., 169 Pa. 1, the same court says: “When juries are so palpably regardless of their duty and of the sanctity of their oaths that they permit their verdicts to be rendered in obedience to their prejudices or their sympathies, as is too often the case, the trial courts should deal with them in a firm and decisive manner and should reject their erroneous verdicts without the least hesitation or delay.”

It is under the law as stated in these and other decisions of the Supreme Court to the same effect that the defendant asks us to set aside the jury’s verdict. The evidence referred to, briefly stated, is as follows:

It is uncontradicted by any testimony that at the time the cars were loaded they were inspected as to their being water-proof by an employee of the plaintiff. Shortly after the arrival of the cars in Pittsburgh, they were carefully examined for the same purpose by employees of the defendant, and all the witnesses agree that there was no evidence that any of the cars leaked water. The explanation was then advanced by the defendant that the damage was caused by sweating, or the condensation of moisture on the furniture. To sustain this theory, G. W. Judd was sworn, who testified that he was and had been an employee of the defendant for over twenty-five years and that during the past three or four years it was his duty to investigate the responsibility of the defendant for damages alleged to have been caused by its negligence in transportation of commodities.

He testified that he could find no leak in the cars, but that in one of them there was evidence of moisture having gathered on its sides. Just when this occurred, he could not tell. There was no evidence of moisture having gathered in the other two cars. He explained how it was possible for condensation to occur in cars from different causes; one being moisture from wet or damp lumber used as crating, and another the change of the outside temperature as compared with the temperature in the cars. As to the condensation being the cause of the damage, in reply to counsel’s question, “Mr. Judd, what caused the condition you found on your examination?” he answered, “I would say moisture condensation probably had something to do with it, but I don’t believe that was all that caused it.”

He further stated that when he examined the furniture there was no dampness on the furniture nor on the paper in which it was packed.

From this quotation and his statements relative to the cause of the damage, Mr. Judd, it is apparent, had no knowledge from his own observation as to the source of the dampness that caused the injury to the furniture, but he simply advanced a theory or opinion as to how this might have occurred, with the further explanation that if it did occur in this manner, there was no method known to railroad companies whereby the sweating or moisture condensation could be avoided.

His testimony was that of an expert, and, under objection by the plaintiff, was admitted as such.

From the character of his testimony relative to the damages being caused by sweating, and the fact that Mr. Judd was an employee of the defendant, we are of the opinion that the credibility and force of the testimony, even though uncontradicted, was entirely for the jury, and any disregard by it of the testimony on the question of damage through sweating cannot be held by the court as such a lapse of duty as to warrant a new trial.

The last reason has but little merit. We were asked to say, by the defendant’s third point: “If the jury find from all the evidence in the case that the damage to the furniture in question was the result of condensation of moisture inside the car, the plaintiff cannot recover and the verdict should be for the defendant.”

At the time of the trial, we were of the opinion that the defendant would not be relieved from the presumption of negligence by showing alone that the damage was caused by sweating or condensation of moisture, and for this reason, we refused the point.

We were of the opinion that, in addition to this, it should appear that there was no practical method whereby the defendant company could avoid damage to the furniture from this cause, and we charged the jury: “The burden rests upon it to prove by a fair preponderance of evidence that it was not only caused by sweating, but the condition was an act of nature beyond the control of the defendant, and for the prevention of which there was no practical means known to transportation railroads.”

We can see no inconsistency in our answer to the defendant's point and this charge. We accepted the law as to the defendant’s point, but simply added that, before the defendant could avoid liability, he must also show that there was no known method whereby the sweating of the car could be controlled and damage to the furniture avoided.

For the reasons given, we think the motion for a new trial should be refused.

And now, April 20, 1928, defendant’s motion for a new trial is refused.

From R. R. Lewis, Coudersport, Pa.


source: Caselaw Access Project

author: Wilhelm, P. J.,

license: Public Domain

text:
    Breidigan’s Estate.
    Dec. 10, 1928.
   Wilhelm, P. J.,

This is the petition of Sallie J. Krause, who alleges that she is a daughter of Benjamin Breidigan, late of Washington Township, who died Sept. 19, 1928, praying the court to award a citation directed to the widow and heirs of Benjamin Breidigan to show cause why an inquest to make partition of the lands described in the petition to and among the parties interested should not be made.

This petition is defective, in that it does not show how the interest of the petitioner arises. A petition for partition should aver that the petitioner has an interest in the real estate which is asked to be partitioned, whether under the intestate laws or by will. A short extract of the will and an averment that the petitioner is a son is not sufficient to give the Orphans’ Court jurisdiction: Heffner’s Appeal, 119 Pa. 462.

Benjamin Breidigan died on Sept. 19, 1928, and this petition was filed Oct. 22, 1928, and the administrator has not had time to take the necessary steps to administer the estate: Clark’s Estate, 134 Pa. 140.

It is said in Keim’s Estate, 201 Pa. 609: “In the first place, the petition is prematurely filed, as only five months have elapsed since the death of the testatrix. The executors are entitled to at least one year in which to settle the estate (Act of Feb. 24, 1834, P. L. 70) and creditors are entitled to the same time in which to present their claims: Gallen’s Estate, 26 W. N. C. 308. Besides, under the Act of June 8, 1893, P. L. 392, the debts of the testatrix are a lien upon her real estate for two years. How, therefore, is it practicable to divide the real estate until it is ascertained whether the debts are all paid and it is clear of the lien thereof? As there is a mortgage of $57,500 on this land, perhaps, when the other debts are paid, there may be nothing left for partition. Be this as it may, the executors are entitled to at least one year to ascertain the facts, administer the estate and liquidate and settle the indebtedness of the testatrix, before a forced settlement of the estate can be compelled by partition proceedings.”

For the reason that this petition is not in proper form and has been prematurely filed, within a little more than a month after the death of Benjamin Breidigan, the petition should be dismissed.

The petition is, therefore, dismissed. From M. M. Burke, Shenandoah, Pa.


author: Wickersham, J.,

text:
    Commonwealth ex rel. Insurance Commissioner v. Exchange Operators, Inc.

      David Ullman, A. B. Ross and John R. Geyer, for petitioners.

      Joseph J. Broiun (Beidleman & Hull with him), for Keystone Indemnity Co., and Henry Wessél, for Franklin Trust Co., contra.

      Thomas J. Baldrige, Att’y-Gen., filed an answer for Insurance Commissioner.
    Oct. 3, 1928.
   Wickersham, J.,

This is a petition on the part of stockholders and creditors of Exchange Operators, Inc., and policy-holders of Automobile Insurance Exchange to vacate a judgment and decree of the Court of Common Pleas of Dauphin County on proceedings to dissolve the defendant corporation instituted by the Insurance Commissioner against the Exchange Operators, Inc., on the ground that the court was without jurisdiction of the subject-matter; and upon the further allegation that the court was imposed upon in order to have the decree entered.

Answers were filed by the Keystone Indemnity Company and the Franklin Trust Company in opposition to the petition; the Attorney-General filed an answer for the Insurance Commissioner of Pennsylvania.

The order of this court dissolving the defendant corporation was made Nov. 2, 1923. In 1925, proceedings in equity were brought in the United States District Court for the Eastern District of Pennsylvania against the Keystone Indemnity Company, certain individuals and the Franklin Trust Company, charging conspiracy and fraud in these matters, and praying for an accounting. The defendants, or certain of them, answered that the matters about which complaint was made were done under and by virtue and authority of the decree of this court, whereupon the petitioners presented their petition in August, 1926, praying for the vacation of the judgment and decree of Nov. 2, 1923. Depositions were taken before a notary public and presented to the court at the oral argument before the court in banc.

History of the case.

The Exchange Operators, Inc., was a corporation organized under the Act of April 9, 1874, P. L. 293, for the purpose of “transacting a general insurance brokerage and agency business.” In this capacity it acted as agent for Automobile Insurance Exchange, an unincorporated association, organized under the provisions and by authority of the Act of July 24, 1913, P. L. 977.

A reciprocal is not an insurance company, but may consist of individuals, partnerships and corporations of this Commonwealth who are authorized to exchange reciprocal or inter-insurance contracts with each other or with individuals, partnerships and corporations of other states and countries, providing indemnity among themselves from any loss which may be insured against under any provisions of the insurance laws excepting life insurance. Such contracts may be executed by an attorney, agent or other representative who is, in the insurance laws, of Pennsylvania, designated “attorney,” duly authorized and acting for such subscribers.

These reciprocals are under the control of the Insurance Commissioner like an insurance company. An insurance agent or broker is under the control of the Insurance Department for licensing only. After an exchange becomes insolvent, the Insurance Commissioner is authorized to proceed in the Court of Common Pleas of Dauphin County for its dissolution and winding up of its affairs, in which event the Insurance Commissioner acts as the statutory receiver (Act of May 17, 1921, § 501, et. seq., P. L. 789). No such control is given over corporations organized to act as insurance agents; the liquidation of their affairs is governed by the general laws relating to corporations.

In August, 1923, the Insurance Department made an examination of the Automobile Insurance Exchange and reached the conclusion that the Exchange Operators, Inc., the attorney-in-fact or agent, owed the Automobile Insurance Exchange, the reciprocal, $112,000.

On Nov. 2, 1923, the Insurance Commissioner presented to this court his suggestion, filed in the name of the Attorney-General, the proceeding being instituted by Fred Taylor Pusey, Esq., a Special Deputy Attorney-General, wherein it was suggested:

(a) That Exchange Operators, Inc., was a corporation organized under the Insurance Company Act of 1913, and acting under the Act of 1921.

(b) That its principal place of business was in Philadelphia.

(c) That an investigation of its affairs disclosed that it was insolvent and that its further transaction of business would be hazardous to its policyholders and to its creditors and to the public.

(d) That it desired to eo-operate with the department in the liquidation of its property.

(e) That the Keystone Indemnity Company, which was also incorporated as an insurance agent and broker, would undertake to take over the assets of the Exchange Operators, Inc., and fulfill certain of its obligations, carrying all outstanding policies to termination, not, however, agreeing to assume all of its liabilities.

The suggestion prayed for an order to show cause why the Insurance Commissioner should not take possession of the property of the defendant, and why its charter should not be vacated, and for an order directing the liquidation of the business of the defendant by the Insurance Commissioner, and to ■ approve the offer submitted by the Keystone Indemnity Company for the transfer of the assets and business to it upon its assumption of liability for claims of policy-holders and of certain creditors.

Attached to the petition was a copy of a resolution of the officers and directors of the defendant company passed at a meeting of its directors authorizing and directing the officers of the defendant to transfer all of its assets to the Insurance Commissioner or to such person as may be substituted as attorney-in-fact in its place, as the Insurance Commissioner would direct.

Upon presentation of the suggestion of the Attorney-General, a rule was granted upon the defendant, returnable on the same day, to show cause why the Insurance Commissioner should not take possession of the property, assets and business of the defendant, and to show cause why the court should not order its dissolution and the liquidation of its business, and why its property and business should not be transferred by the Insurance Commissioner to the Keystone Indemnity Company, in accordance with its proposition.

At the same time, there was presented a consent signed by the president and secretary of the defendant waiving the issuing of the rule and agreeing to the allegations of the suggestion and to the granting of the relief prayed for, whereupon, at the same time, there was entered a decree of dissolution dissolving the defendant and granting the prayers of the suggestion.

It further appeared from the suggestion that on March 1, 1919, the defendant entered into an agreement with the Franklin Trust Company of Philadelphia, under which the defendant had transferred to the trust company the sum of $100,000, the proceeds of the sale of preferred stock of the defendant of that amount, in trust, for the maintenance of a guarantee fund for the policy-holders of the Automobile Insurance Exchange, and thereafter for the benefit of the holders of the preferred stock of the defendant. The suggestion averred that the trust company held the fund and that it was liable for the payment of claims of policy-holders, and that, in addition to the taking of all of the assets of the Automobile Insurance Exchange by the Keystone Indemnity Company, the purchaser of the business of the defendant, it was proposed to have it take over this fund of $100,000, and the Insurance Commissioner prayed that he be authorized and directed to pay over this fund to the Keystone Indemnity Company upon its assuming liability for the claims of policyholders and agreeing to carry existing policies to termination and assuming liabilities for the claims of certain of defendant’s creditors.

Attached to the suggestion was the waiver of the attorney for the Franklin Trust Company of the issuance of the rule to show cause and acceptance of service on behalf of it. The court decreed that the Franklin Trust Company be directed to pay to the Insurance Commissioner the fund of $100,000, after deducting the sum of $1000 as compensation for its services as trustee. This fund of $100,000 was then directly turned over to the Keystone Indemnity Company.

In the proceedings had in this court, no attempt was made to make the preferred stockholders parties to the record, nor to give them notice of what it was proposed to do with the trust fund in which they had a reversionary interest; at least one of such stockholders is a petitioner in this proceeding.

Discussion.

Upon the facts as we have stated them, the petitioners contend:

1. That inasmuch as the Exchange Operators, Inc., was not an insurance corporation incorporated under the Act of 1913, or any other act, as an insurance company, but incorporated under the general corporation laws to act as an insurance agent or broker, the Court of Common Pleas of Dauphin County had no jurisdiction over the subject-matter, because:

(a) It was not an insurance company; and

(b) It had no place of business nor office for the transaction of business in Dauphin County. The suggestion avers that it was organized with its place of business in Philadelphia, and that it transacted its business there, and, therefore, a decree for its dissolution and the liquidation of its affairs could be made only in Philadelphia County, and that jurisdiction of the subject-matter could not be conferred by consent.

(c) That the court had no jurisdiction of the fund in the hands of the Franklin Trust Company because of lack of notice to preferred shareholders, or either of them.

2. The petitioners ask for a vacation of the decree because of fraud perpetrated upon the court.

We will proceed to examine these several contentions urged by the petitioners. The first contention of the defendant, petitioner, is that the court had no jurisdiction to dissolve the Exchange Operators, Inc., on the suggestion presented to the court Nov. 2, 1923, for the first reason above stated.

It is provided in the Act of April 9, 1856, P. L. 293: “That it shall be lawful for any court of common pleas of the proper county to hear the petition of any corporation under the seal thereof, by and with the consent of a majority of a meeting of the corporators, duly convened, praying for permission to surrender any power contained in its charter, or for the dissolution of such corporation; and if such court shall be satisfied that the prayer of such petition may be granted without prejudice to the public welfare, or the interests of the corporators, the court may enter a decree in accordance with the prayer of the petition, whereupon such power shall cease or such corporation be dissolved. . . . Provided that the decree of said court shall not go into effect until a certified copy thereof be filed and recorded in the office of the Secretary of the Commonwealth.”

The “proper county” intended by said Act of 1856 may be, at the option of any corporation praying for permission to dissolve in the way and manner in said act designated, either the county in which the principal operations of the corporations are conducted or that county in which its principal office or place of business is located: Act of April 4, 1872, P. L. 40.

In New Castle Wire Nail Co.’s Case, 18 Pa. Superior Ct. 257, it was said by President Judge Rice (page 261), the manner of dissolving a corporation is prescribed by the Act of April 9, 1856, P. L. 293.

The Act of April 9, 1856, P. L. 293, providing for applications to the Courts of Common Pleas in matters of dissolution of corporations, must be understood as referring to the equity jurisdiction given to that court by the Act of June 16, 1836, P. L. 784. It follows that the petition must be regarded as a bill and the proceedings must be held to conform to the practice in equity. In a matter so vital to a corporation as its dissolution, it is not too much to say that the proceedings should be at least as deliberate and orderly and with as .full opportunity for participation by the stockholders as on an election of officers, or on the question of an increase or reduction of capital stock or an issue of preferred stock: Titusville Oil Exchange et al. v. Witherop et al., 2 Pa. Superior Ct. 508, 509.

The equity power to dissolve corporations involves a further proceeding to the extent of a distribution of the assets of such corporations among those legally entitled thereto. A court of equity may, therefore, decree the sale both of real estate and personal property of a dissolved corporation: In the matter of the Dissolution of the Titusville Oil Exchange, 10 Pa. Superior Ct. 496.

The dissolution of a corporation is not a corporate act, but an act of the members of the corporation; and its officers in effecting such an arrangement act as trustees of the members, not as corporate functionaries. Under -the Constitution, a majority of the members of a corporation cannot be authorized to divest the interest of a dissenting stockholder by a'transfer of the whole of its property to another company, to be paid for in the shares of such other company, without first giving security for the interest of such dissenting stockholder: Lauman v. Lebanon Valley R. R. Co., 30 Pa. 42. See, also, opinion of Lowrie, C. J., page 46; Pottsville Bank v. Minersville Water Co., 211 Pa. 566.

Objections to the jurisdiction of the court are of two classes, between which there is a clear and well-defined distinction; first, those relating to the authority of the court over the subject-matter; and, secondly, those relating to its authority over the parties. Objections of the first class cannot be waived or jurisdiction obtained by acquiescence: Lewisburg Bridge Co. v. County of Union and County of Northumberland, 232 Pa. 255. See, also, Hazard’s Estate, 253 Pa. 447, and Shambe v. Delaware & Hudson R. R. Co., 288 Pa. 240.

Applying the above-stated principles of law to the admitted -facts, it clearly appears that the defendant was a corporation incorporated under the Act of April 29, 1874, P. L. 73, domiciled in the City of Philadelphia. It does not appear that it had an office in Dauphin County .or that it had one of its principal officers who was a resident within the jurisdiction of this court. It further clearly appears that the defendant was not an insurance company, but an insurance agent or broker. Even if the contention of counsel for the Keystone Indemnity Company and the Franklin Trust Company were correct, that the proceedings were in fact against the Automobile Insurance Exchange instead of the Exchange Operators, Inc., which we do not concede, then the Insurance Commissioner did not proceed in the manner required by the Act of May 17, 1921, P. L. 789.

Section 321 of the last-mentioned act requires the insurance “commissioner shall, in case he finds the capital or reserve of the company or exchange impaired twenty per centum, give notice to the company or exchange to make good the capital or reserve within sixty days.” It clearly appears from the record in this case that no such notice was given. Section 501 provides, inter alia: “If, upon examination or other evidence exhibited to him, the Insurance Commissioner is of opinion that any insurance company, association or exchange, or an officer or agent thereof, has violated any provisions of the insurance laws, he shall report the facts to the Attorney-General, who, under the direction of the Insurance Commissioner, shall take such legal action as the case may require.” The procedure to be followed is provided in section 502. If the insurance company or exchange is found to be in a condition set forth in headings (a) to (g), and the Insurance Commissioner has communicated the facts to the Attorney-General, the Attorney-General “shall, after hearing, apply to the court of common pleas of Dauphin County, or to the court of any county in which the principal office of such . . . exchange . . . is located, for an order directing such . . . exchange ... to show causé why its business should not be closed, and the Insurance-Commissioner should not take possession of its^property, etc.”

Such proceedings were not had. There was no hearing before the Attorney-General, nor, as we have before stated, was the exchange given sixty days to make good the deficit. The record shows a much shorter time was allowed. The report of the alleged deficiency in the reserve of the exchange was made by Costello to the commissioner on Sept. 13, 1923. Demand for the payment of $112,000 was made on Sept. 20th, and oral demand for transfer of the business for failure to make good this alleged deficiency was made on Sept. 29th, sixteen days after the first notice. The actual transfer was made to the Keystone Indemnity Company on Oct. 23rd, thirty-one days after the amount of the demand had been disclosed. The act provides that the Attorney-General can proceed only after he himself has held a hearing. No such hearing was held.

Section 504 of the act provides that the order to show cause, and the papers upon which the same is made in any proceeding instituted under the provisions of this act, shall be served upon the . . . exchange ... in the manner prescribed for personal service of summons upon a domestic corporation by the laws of this Commonwealth; and upon the failure of such service, then in the manner that the court shall direct. No such proceedings were attempted. Section 505 provides: “On the return of such order to show cause, and after a full hearing before the court or before an examiner appointed by the court, the court shall” act. No hearing was held, for the reason that it appeared from the exhibits attached to the suggestion presented to the court that the proceedings were directed against the Exchange Operators, Inc.; that said corporation, by resolution of its stockholders and board of directors, had agreed) that the court should make the order. It was further agreed that service of the rule need not be made and counsel for the Franklin Trust Company also waived service of the rule.

The accuracy and legality of the proceedings had by the stockholders and board of directors of the defendant corporation has been attacked. It appears from the record that at the stockholders’ meeting held Sept. 29, 1923, a quorum was present. When it appeared what was the nature of the business to be transacted at the meeting, Mr. Kennedy withdrew all proxies standing in his name, aggregating $18,630 par value, and Mr. March, another petitioner, withdrew all proxies standing in his name, both of them announcing that they did so on advice of counsel. It was contended that these withdrawals left less than a quorum present, whereupon the meeting adjourned until Oct. 4th. We cannot agree with this contention. If a corporate meeting is once organized and all parties have participated, no person or faction can then, by refusing to vote or by withdrawing, thereby defeat the organization or render the subsequent proceedings invalid. The stockholders who attend the meeting and then without cause voluntarily withdraw are in no better position than those who voluntarily absent themselves in the first instance: Com. v. Vandegrift, 232 Pa. 53; Lutz v. Webster, 249 Pa. 226, 230; Stryjewski et al. v. Panfil et al., 269 Pa. 568.

However, it appears from the depositions that the remaining stockholders, after the withdrawal of Kennedy and March, together with the proxies which they held, concluded there was not a quorum present, whereupon they adjourned the meeting to Oct. 4th. A minority can always adjourn; but where the by-laws of a corporation provide the date to which an adjournment can be had and the notice to be given of such adjournment, we think those by-laws must be followed, and no lawful meeting can be held at a time other than that prescribed by the by-laws of the corporation.

Section 3 of the by-laws of the defendant corporation provides:

“The holders of a majority of the stock issued shall constitute a quorum for the transaction of business at the annual meeting and at any special meeting of the stockholders.

“If no quorum be present at the time set for such meeting, an adjournment may be taken to a further date not less than ten days thereafter, and notice of such adjourned meeting must be sent to all stockholders.”

In their haste, this by-law was overlooked and not observed. It is conceded that notice to all of the stockholders of the adjourned meeting was not given.

The stockholders had a reversionary interest in the trust fund of $100,000 held by the Franklin Trust Company. The action taken by the stockholders on Oct. 4th, authorizing the transfer of this fund to the Insurance Commissioner and by him to another corporation incorporated as an insurance agent or broker, in effect, took away from the stockholders what reversionary interest they had in this trust fund. We think such a proceeding was taking the property of the stockholders without due process of law: Home Telegraph and Telephone Co. v. Los Angeles, 227 U. S. 278; Fidelity and Deposit Co. v. Tafoya, 270 U. S. 426; National Auto Corporation v. Barfod, 289 Pa. 307, 310.

It is the contention of the petitioners that the notice of the stockholders’ meeting to be held Sept. 29, 1923, was not sufficiently specific; that the adjourned1 meeting of Oct. 4th was not called and held as required by the by-laws of the defendant corporation, and, therefore, the action taken at said meeting was null and void; that at the meeting of the board of directors of the defendant corporation held Oct. 15, 1923, two of the directors filed a written protest, offered in evidence, against the proceedings theretofore had) by the stockholders, and requested that their votes be registered against transferring the property of the corporation, especially the $100,000 trust fund, to the Keystone Indemnity Company, after which they withdrew from the meeting. Whereupon a three days’ adjournment was taken, and, after two directors from distant states had been brought to the meeting, the resolution authorizing the dissolution of the defendant corporation was adopted. Of the adjourned meeting held Oct. 4th and 18th, the petitioners had no notice.

These questions are all interesting and will, we have no doubt, receive the careful consideration of the Federal Court, which court, after considering all the evidence, can do exact justice between the several parties to this litigation. We think, however, we do not need to pass upon and decide the very many contentions raised at this time. The only two questions we have before us, as we view the case, is whether we had jurisdiction of the subject-matter; and, secondly, whether the court was deceived by allegations contained in the suggestion of the Attorney-General heretofore referred to.

If we view these proceedings as an intent to dissolve the defendant corporation, we think we were without jurisdiction to act for the reasons heretofore stated, and not having any jurisdiction of the subject-matter, such jurisdiction could not be conferred by consent. If we consider these proceedings as an effort to dissolve the Automobile Insurance Exchange, we are of the opinion that the proper proceedings required by the act of assembly were not observed by the Insurance Commissioner. Certainly, the holders of the preferred stock of the defendant corporation had a reversionary interest in the $100,000 trust fund and were entitled to notice of the proceedings transferring that trust fund to the Keystone Indemnity Company, which was not a party to the original trust. Whether this reversionary interest was substantial we cannot now tell; that will have to be determined in the Federal Court after final hearing. It does not appear from the evidence that all the holders of preferred stock of the defendant corporation had notice of the proceedings to transfer this trust fund to another party. No man shall be adjudged in person or property without notice and an opportunity to appear and be heard. Where substantial property rights are impaired, it must be predicated on notice and hearing: National Auto Corp. v. Barfod, 289 Pa. 307; Shambe v. D. & H. R. R. Co., 288 Pa. 240. We are of the opinion, therefore, that this court was without jurisdiction to make the order of Nov. 2, 1923, about which complaint is now made.

We might rest our decision at this point, but it is' seriously contended by - counsel for the petitioners that in the presentation of the suggestion by the Deputy Attorney-General, In re Com. ex rel. Samuel W. McCullough, Insurance Commissioner of Pennsylvania, v. Exchange Operators, Inc., the court was misled and deceived by false and inaccurate statements, and, therefore, that the order made by the court on the suggestion aforesaid was null and void and of no binding force and effect and ought to be vacated. This contention we will now proceed to examine.

It is alleged in the introductory paragraph of the suggestion of the Attorney-General that the Exchange Operators, Inc., is a corporation incorporated under the provisions of the Act of Assembly of the Commonwealth of Pennsylvania of June 27, 1913, P. L. 634; and since operating and coming under the provisions of the Act of Assembly of the Commonwealth of Pennsylvania of May 17, 1921, P. L. 682, known as the Insurance Company Law of 1921. This is not a fact; the defendant corporation was incorporated under the Act of 1874.

On the second page of said suggestion it is alleged that the defendant “has neglected and refused to observe the order of the Insurance Commissioner to make good within the time prescribed by law deficiency in its reserve required by law, the same having been impaired.” The defendant company being organized under the Act of 1874 to act as an insurance agent and broker, was not required to have a reserve; nor does it appear from the evidence that the notice was given, as required by law.

It is further alleged in the same paragraph that the said defendant, after examination by the said Insurance Commissioner, was found to be in such condition that its further transaction of business would be hazardous to its policy-holders, to its creditors and to the public. The defendant did not have any policy-holders. That the defendant corporation was indebted to the Automobile Insurance Exchange is denied and contested.

It is provided in the next paragraph of the suggestion “that said examination of the Insurance Commissioner further disclosed the fact that the outstanding unsettled claims for loss of policy-holders holding policies of indemnity or insurance issued by the said Exchange Operators, Inc., amounts to upwards of $170,000. . . .” We again state, the defendant, being an insurance agent, did not have any policy-holders.

In other words, the court was led to believe by the allegations in the suggestion that the defendant was an insurance corporation and, therefore, under the supervision and regulation of the Insurance Commissioner of the Commonwealth of Pennsylvania, and, therefore, that this court had jurisdiction of the subject-matter. It now appears that the defendant was not incorporated under the Insurance Act of 1913, and that the Insurance Commissioner was without authority to assume to control and regulate it, and was without authority to petition the court for an order fop its dissolution.

Being misled by the allegations contained in the suggestion, this court, by its decree of dissolution, found as a fact that the defendant corporation was in an insolvent condition and that it neglected- and refused to observe an order of the Insurance Commissioner to make good within the time prescribed by law the deficiency in its reserve required by law, the same having been impaired; that said Exchange Operators, Inc., after examination by the said Insurance Commissioner, was found' to be in such condition that its further transaction of business would be hazardous to its policy-holders, to. its creditors and to the public. We found as a fact that there was a hearing duly held before the Attorney-General of the Commonwealth of Pennsylvania as provided by law; no such hearing was held; nor, as we have heretofore stated, did'the Insurance Commissioner proceed in the manner prescribed by the Insurance Acts of 1913 and 1921. It follows that the court was imposed upon and the order of court obtained .under such misrepresentation of fact should not stand; it ought to be vacated.

The briefs of learned counsel for the Franklin Trust Company and Keystone Indemnity Company devote much space to a discussion of the question of laches in which the authorities upon that subject have been cited. Laches could not cure the lack of jurisdiction; in any event, the effect of laches upon the present controversy is properly before the Federal Court, but not before this court, since we have determined the matter on the question of jurisdiction.

It also appears from the vast amount of testimony taken that counsel for these two corporations were trying their case as though upon final hearing, having evidently in mind that this court would take into consideration the merits of their contentions. This we think we cannot do. The only question we have before us is jurisdictional, which contention we have heretofore in this opinion determined. We are of the opinion that we had not such jurisdiction. The very many interesting questions raised by counsel for the said Keystone Indemnity Company and Franklin Trust Company can properly be heard and adjudicated by the Federal Court, as we have heretofore stated.

Decree. — The order of this court made Nov. 2, 1923, in which the said defendant corporation was dissolved, is revoked; the costs of these proceedings to be paid by the respondents, the Keystone Indemnity Company and the Franklin Trust Company. Prom Homer L. Kreider, Harrisburg, Pa.


author: Moyer, Dep. Att’y-Gen.,

text:
    Lehigh Valley Railroad Company’s Tax Resettlement.
    July 27, 1928.
   Moyer, Dep. Att’y-Gen.,

You have advised this department that on Oct. 23, 1925, capital stock tax amounting to $304,696.37 was settled against the Lehigh Valley Railroad Company, on account of which a payment was made Dec. 18, 1925, in the amount of $134,713.16, and on Nov. 18, 1926, a subsequent payment on account was made by this company in the amount of $125,000; that, pursuant to the second payment on account, an interest settlement was made Nov. 29, 1926, imposing 12 per cent, interest on said sum of $125,000 from sixty days after Oct. 23, 1925, or Dec. 22, 1925, to the date of said payment, to wit, Nov. 18, 1926, a period of 331 days, in the amount of $13,791.74; and that on March 15, 1928, a resettlement of said capital stock tax was made by the fiscal officers for said year (1924), reducing the amount of the tax imposed from $304,696.37 to $187,690.35.

You refer to the fact that by the Act of April 12, 1923, P. L. 66, it was provided that where one or more resettlements of taxes have been made, the balance finally found to be due the Commonwealth bears interest at the rate of 12 per cent, per annum from sixty days after the first or original settlement, and that this Act of 1923 was repealed by the Act of March 31, 1927, P. L. 94. You inquire, therefore, whether said Act of 1923 is enforceable in cases in which resettlements were not completed within the time from April 12, 1923, the date of said act, and March 31, 1927, the date of approval of the particular act in question, or whether said Act of 1927 puts cases in which resettlements have been made subsequent to March 31, 1927, in the same position as if there had never been any such Act of April 12, 1923.

The Act of March 31, 1927, P. L. 94, further amends section 30 of the Act of June 1, 1889, P. L. 420, as amended by the Act of April 12, 1923, P. L. 66. It further amends said Act of 1889, as amended by the Act of 1923, by striking out the provision: “. . . and where one or more resettlements have been made, the balances finally found to be due the Commonwealth on such accounts shall bear interest at the rate of 12 per centum per annum from sixty days after the first or original settlement;” and also striking out the provision: “. . . And provided further, that the amendments herein made shall only apply to those cases where the first or original settlements are made after the passage of this act.”

In said Act of 1927 we find no saving clause or any indication of legislative intent to make any reservation for the period between April'12, 1923, the date of the approval of said Act of 1923, and March 31, 1927, the date of approval of the particular act we are now considering. Consequently, when the legislature, on March 31, 1927, further amended section 30 of the Act of June 1, 1889, as amended by the Act of April 12, 1923, by striking out the provision which had to do with the imposition of interest at the rate of 12 per cent, per annum from sixty days after the date of the first or original settlement upon the balances finally found to be due the Commonwealth on accounts therein referred to, where one or more resettlements had been made, this provision was no longer enforceable in cases in which resettlements were not made until sometime subsequent to March 31, 1927.

The resettlement in the case before us was not made until March 15, 1928. This date is subsequent to the approval of the said Act of 1927. It is also to be noted from the facts as you have stated them that in the resettlement which was duly made and approved on March 15, 1928, the capital stock tax imposed against the company in question was reduced from $304,696.37 to $187,690.35. The company had already paid on Dec. 18, 1925, the sum of $134,713.16, and on Nov. 18, 1926, the further sum of $125,000, making a total of $259,713.16. In accordance, therefore, with the resettlement made on March 15, 1928, the company would appear to have paid into the State Treasury an amount of tax considerably in excess of that which was found to be due. For this reason, the company in question is entitled to a resettlement of the interest settlement previously made and approved on Nov. 29, 1926, which was based on the erroneous settlement of Nov. 23, 1925; and in light of the fact that the resettlement of the capital stock tax of this company for the year 1924, made on March 15, 1928, shows an amount less than that which was already paid by the company, in making the resettlement of said interest settlement of Nov. 29, 1926, the interest imposed should be stricken off.

You are, therefore, advised that the Act of April 12, 1923, P. L. 66, is not enforceable in cases in which resettlements were not completed within the time from April 12, 1923, to March 31, 1927, the date when the Act of March 31, 1927, P. L. 94, was approved; and that, under the facts as you have stated them in the case at issue, the interest settlement made Nov. 29, 1926, imposing 12 per cent, interest on $125,000 from sixty days after the date of the original settlement to the date of payment, to wit, Nov. 18, 1926, in the amount of $13,791.74, should be resettled and stricken off.

Prom C. P. Addams, Harrisburg, Pa.


author: Barnett, P. J.,

text:
    Smith’s Case.

      W. W. Rice, for petitioner; Luke Baker, contra.
    July 28, 1928.
   Barnett, P. J.,

The petitioner, John C. Smith, is the owner of a tract of land, situate in Carroll Township, containing about ten acres. The western portion of the land is rectangular in shape, about 243 feet in width, and 769 feet in length from east to west. Its western boundary-line is in the centre of the old road leading from Carlisle to Bloomfield. Upon the western end of the rectangle, near to the road and facing it, stands the petitioner’s dwelling-house, and immediately in the rear of it his garage. About 150 feet east of the garage is a barn and chicken-house. The road was taken over by the Commonwealth as State Highway Route No. 40. In the construction, reconstruction and improvement of this route its course was changed at and near the petitioner’s property and the new portion of the road was made to pass over petitioner’s land, from south to north, about midway between the dwelling-house and garage on the west and the barn and chicken-house on the east. Upon the application of the petitioner, viewers were appointed to assess the damages resulting to him from the location and construction of the new highway.

In the report filed by the viewers, the following facts, among others, are found:

4. That by reason of the relocation of the State highway, Route No. 40, at petitioner’s premises, (a>) about one-fourth of an acre of ground is appropriated, of the value of $25; (b) twenty-nine rods of new fence are required, to build which will cost $29; (e) the new road passes between petitioner’s house and bam and he will suffer the inconvenience of crossing a much-traveled highway to get from that part of his land which is west of the new highway to that part of it which lies east of said new highway; but nearly all of said petitioner’s farm land is on the east side of the road on which his barn and water for his stock are. The damages by reason of the road’s passing between the house and barn is the sum of $152.

5. The principal claim of the petitioner to damages arises from the fact that the old road is in front of his house and the new road is to the rear of his house. The old road is not vacated, and whether it ever will be remains to be seen. There is very little travel on the old road and much travel on the new road. The petitioner had reasonable grounds for believing, before he built his new house, that the new road would be located to the east of the present site of his house. With his house fronting as it is, the petitioner cannot sit on his front porch and watch the procession of automobiles pass along the new highway. This prospect or view is lost to the petitioner. The same situation would have arisen had the location of the road been anywhere else to the east of his house, even if a mile away, over other lands than his.

If the petitioner were entitled to recover any damages for this deprivation of the prospect or view, the depreciation in the market value on his property on this score would be $200.

6. The depreciation in the market value of petitioner’s land caused by the construction of the new highway is the sum of $206.

The viewers in their report award to the petitioner the sum of $206 as damages.

Exceptions filed by the petitioner make the following objections to the report:

1. The viewers failed to apply the proper measure of damages, viz., the difference between the fair market value of the petitioner’s property immediately before the construction of the new road and its value immediately after as affected by such construction.

2. The fifth finding of fact is erroneous in that it seems to assert “as a principle of law that a land owner is not entitled to recover damages arising. from the depreciation in the fair market value of his land caused by the relative location of a public road on his land as compared with the buildings thereon and the other parts thereof.”

3. The viewers erred in not including in the amount of their award the sum of $200, fixed in the fifth finding of fact as the measure of depreciation in value because of the loss of view of the traveled highway from the front of the dwelling-house.

4. The viewers erred in holding, in the second conclusion of law, that “the petitioner is not entitled to recover damages because the traffic is diverted from the old roadway to the new road.”

5. The viewers erred in their third conclusion of law that “a land owner is not entitled to recover damages because of the vacation of a road, and, therefore, not for acts which simply divert traffic from a road not actually vacated.”

6. “The viewers erred in failing to conclude, as a matter of law, that the petitioner is entitled to recover damages arising from the depreciation in the fair market value of his land caused by the relative location of the new road on his land as compared with the buildings thereon and other parts thereof.”

7. The amount of the award is not assessed according to the legal measure of damages and does not include elements of damage for which the petitioner is entitled to be compensated.

The exceptant requests that the report be referred back to the viewers with an order to assess damages according to the measure set forth in their fourth conclusion of law, and to include in their award allowance for any depreciation caused by the relative location of the new road as related to the buildings and the other parts of exceptant’s land.

In their fourth conclusion of law the viewers state as the rule for the admeasurement of damages that “the land owner is entitled to recover the difference between the fair market value of his property immediately before the construction of the said road and immediately thereafter, as affected by the construction of the new road.” That this is a correct statement of the rule is unquestioned. Applying the maxim omnia priesamuntur rite esse acta, we must assume that the viewers assessed the damages in accordance with the rule: Road in South Abington Township, 109 Pa. 118, 121; English v. English, 19 Pa. Superior Ct. 586, 595; Broom’s Legal Maxims (8th ed.), § 945. Aside from the presumption that the rule was observed by the viewers in determining the amount of their award, the very fact that in their report they referred to the rule as the legal measure of damages is convincing evidence that they were governed in their deliberations by it, and this is further demonstrated by the language of their sixth finding of fact: “The depreciation in the market value of the petitioner’s land caused by the construction of the highway is the sum of $206.00.” It is argued that the fourth finding of fact, specifying the elements of injury, and appraising them at sums which aggregate the exact amount of the award, shows conclusively that the rule for the assessment of damages was ignored, and that the viewers did what numerous decisions hold may not properly be done, determined the elements of injury, attached a figure to each element, and then announced the sum of these figures as their award, without consideration of the value of the entire property, before and after the construction of the road. We are not convinced that this is true. Both the petitioner and the county were represented at the view by counsel; we gather from the argument that witnesses on both sides of the issue testified to their opinions of the before and after values; doubtless this testimony was commented upon by counsel in arguments to the viewers. When, after all this, the viewers in their report state as a conclusion of law the well-settled rule for assessing damages, and find damages in language indicating that they understood and followed the rule, we feel that we should do violence to the record by sustaining the first and seventh exceptions. In the trial of issues such as this before a jury, witnesses are always permitted to particularize the elements of damage and place estimates upon them, to justify and explain their testimony as to the difference between the values of the property as a whole, before and after the taking. The intention of the viewers in presenting their fourth finding of fact, as we understand it, was merely to indicate the basis of fact and figure upon which they arrived at their conclusion under the rule they themselves correctly announced. If there is a difference in value of land before and after a taking or construction, there must be something to cause it, and the witness who testifies to, or the tribunal which determines, the existence of such difference is not convincing, if elements and estimates accounting for the difference cannot be given.

The second and sixth exceptions assume that the viewers failed to consider, as affecting the question of damages, the “relative location of the new road on (the petitioner’s) land as compared with the buildings thereon and other parts thereof.” That the viewers did consider this matter, and that they regarded it as an element requiring compensation, is shown by item (o) of the fourth finding of fact. That they considered the question carefully is further shown by the fifth finding of fact, in which they disallow a part of the claim for damages made on the ground of the location of the road relatively to the buildings, while allowing the claim in part in item (c). We do not find either of these exceptions to be well founded.

The third, fourth and fifth exceptions all relate to the refusal of the viewers to regard as an element of damage the diversion of public travel from the old road, in front of the petitioner’s house, to the new road in the rear. It is clear that the viewers were right in their conclusion. The old road has not been vacated and is still open to use by the public. Even if it had been vacated, its .vacation would not have afforded a ground for recovery against the county: Saeger v. Com., 258 Pa. 239; Howell v. Morrisville Borough, 212 Pa. 349. When the new highway was constructed, the portion of it which crossed the petitioner’s land, connecting north and south of it with the old road, was a short cut and a better surfaced road than the old. Naturally, the public, although still free to travel the old road, adopted the new, but the consequence of this voluntary choice of the public is damnum, absque injuria. In such cases as Weinschenk v. Western Allegheny R. R. Co., 233 Pa. 442, 448; Hewitt v. Railroad Co., 19 Pa. Superior Ct. 304, 308, and Robinson v. Pennsylvania R. R. Co., 6 Pa. Superior Ct. 383, 393, the elements which constitute compensable injury are pointed out. In State Highway Route No. 72, 71 Pa. Superior Ct. 85, the damages to be considered and the statutory provisions under which they may be allowed are elaborately discussed. Prom these and like cases it is apparent that damages are to be awarded only for the actual taking of the owner’s property and such injury as may result to the remaining property from such taking. A property owner has no interest in or title to a highway upon which his land abuts, or in the public use of the highway, above that of any resident of the community. See Saeger v. Com., Howell v. Morrisville Borough, supra. To award the petitioner damages for the diversion of traffic from the old road to the. new would be to assume for his benefit a property right he does not have.

It is contended in the brief for the petitioner that the viewers misunderstood his claim; that it was not for the diversion of public travel from the front to the rear of his house and the consequent loss of the view of the panorama from his front porch, but for the injury to the privacy of his home, caused by the construction of the road in its rear. Such a claim, however, is only a phase of the general complaint of injury from the location of the new road relatively to the petitioner’s buildings, and this element of damage was considered by the viewers and made in part the basis of their award, as appears above in the discussion of the second and sixth exceptions. If they made any allowance because of the alleged invasion of privacy, it was not necessary that the report should specify it; if they made none, it must be presumed that they were not convinced that the petitioner was entitled to it.

And now, July 28, 1928, the exceptions are all overruled and dismissed, and ihe report of the viewers is confirmed; to which decree the petitioner excepts, and at his instance a bill of exceptions is sealed.

From J. N. Keller, New Bloomfield, Pa.


author: Kun, J.,

text:
    Waltman et al., Executors of Mayer, v. Mayer.

      Wm. Custer Waltman, for rule; W. Horace Hepburn, Jr., contra.
    Jan. 10, 1929.
   Kun, J.,

John B. Mayer died Aug. 18, 1924, and by his will, dated July 15, 1924, John P. Mayer, William Custer Waltman and the Land Title and Trust Company were appointed and qualified as executors and trustees. The widow, Margaret B. Mayer, elected to take against the will and sustained her claim to a one-half interest in the estate by virtue of an adjudication of the Orphans’ Court filed June 24,1925. Apparently, in order to sustain the election, the widow had agreed to sell to Dwight M. Lowrey, by virtue of a paper dated June 18, 1925, her one-half interest in the estate of John B. Mayer, deceased, for the sum of $300,000. It further appeared by another paper or agreement dated the same day that an agreement of further settlement was entered into between the widow, the executors and trustees and Dwight M. Lowrey, attorney-in-fact for all of the heirs, by which the executors and trustees agreed that the widow was entitled to all of the “household furniture and furnishings” in premises No. 4400 North Broad Street, in the City of Philadelphia, State of Pennsylvania, and that the executors and trustees released their claim thereto. The widow being in possession of premises No. 4400 North Broad Street, apparently the domicile of the testator, moved the household furniture therefrom, and in doing so moved two of five mirrors which were in the house. The executors, trustees and Boyd Lee Spahr, contending that the two mirrors in question were part of the freehold and were fixtures and were not part of the “furniture and furnishings” in the premises, and the interest of the widow in them passed by virtue of the agreement to sell the real estate to Dwight M. Lowrey, while the other one-half interest was in them as trustees, brought this suit to recover their value.

To prove their case, plaintiffs called the defendant, Margaret B. Mayer, for cross-examination, who testified that she had taken out two mirrors with the other household furniture, that one was a parlor mantelpiece-mirror hanging on hooks and that it was not nailed into the wall, that it was an old-fashioned mirror — a parlor mantelpiece-mirror. It was also testified that the mirror was lifted off the wall, and it had hooks behind it, and a lug screwed in the wall and the original paper was under it. The other mirror in question was part of a suite of furniture; that when the doctor (decedent) brought his furniture to the house, he had offered to sell the same to the defendant’s mother, and he had sold the remaining part of the suite for $50. It also appeared that the decedent had formerly owned another property and when that property was sold he had brought the two mirrors along with him when he moved, and installed them in his new home.

Dr. John P. Mayer, plaintiff executor in the case, stepson of the defendant, testified that his father had formerly owned St. Lukes Hospital and had moved four mirrors over to the new house, that molding was attached to the mirrors and the molding was nailed in place; that there were no nail-holes in the mirrors and that the wall-paper was in back of the mirrors; that the house was one of a row of houses, and that his father brought the mirrors along with the other furniture. It would appear that in the present case we are dealing with that which would be ordinary personal property, that is to say, when the testator sold his premises and moved the mirrors out of the house which he had formerly occupied after the sale, it would be idle to contend that at that time the mirrors were real estate. The new house was fully plastered and partly papered before the mirrors were installed, and the mirrors were not recessed into the plaster in any way, but were hung, as it were, against the wall and held in place by molding. It would appear that where an article is ordinarily personal property, such as a mirror, in order to make it part of the real estate, it must be attached in such way and be converted to such a character as to- necessarily carry out the obvious purpose for which the building was erected and to permanently increase its value for occupation and use. See the case of Meig’s Appeal, 62 Pa. 28.

In the case of National Bank of Catasauqua v. North, 160 Pa. 303, it was held that the mere fact that steam radiators were attached to the steam-pipes in the house did not make them part of the house so as to be called fixtures, and that the secret intent of the person bringing ordinary household furniture into the house to make them part of the realty can be given no controlling effect. See, also, the case of Hopewell Mills v. Savings Bank, 150 Mass. 519, to the effect that “the intention to be sought is not the undisclosed purpose of the actor, but the intention implied -and manifested by his act. It is an intention which settles, not merely his own rights, but the rights of others who have or may acquire interests in the property. They cannot know his secret purpose, and their rights depend, not upon that, but upon the inferences to be drawn from what is external and visible.”

The court, in National Bank of Catasauqua v. North, supra, further said (page 308) : “But those decisions also unmistakably show that the ‘intention’ which thus becomes controlling is not the secret design which may dwell in a party’s mind and as to whose existence he alone can speak, but that ‘intention’ which was either expressly declared by the parties competent to make it the governing rule, or which flows, patent to all, from the nature and character of the act, the clear purpose to be served, the manifest relation which the articles bear to the realty, and the visible consequences of their severance upon the proper and obvious use of it.”

What the court said in McKeage v. Hanover Fire Ins. Co., 81 N. Y. 38, is particularly pertinent: “The mirrors were not set into the walls, but were put up after the house had been built, being supported in their places by hooks or supports, some of which were fastened with screws to the woodwork and others driven into the walls, and were capable of being easily detached from these supports without interfering with or injuring the walls. All these articles were, in their nature, mere furniture, and, therefore, chattels and not appurtenances to the building.” See, also, the case of Cranston, Exec’r, v. Beck, 70 N. J. L. Reps. 145, in which it was held that mirrors, some of them resting on mantels supported at the top by iron spikes driven into the wall, and some of the mirrors resting on slabs supported by brackets, the frames of which were painted in the same style as the woodwork of the room, were personal property and not part of the real estate, regardless of their annexation.

In the case of Leigh v. Taylor, in the House of Lords, App. Cas. 157 (1902), relating to tapestries attached by a molding and fastened to the wall, it was held that “where it is something which, although it may be attached in some form or another to the walls of the house, yet, having regard to the nature of the thing itself and the purpose of its being placed there, is not intended to form part of the realty, but is only a mode of enjoyment of the thing while the person is temporarily there, and is there for the purpose of his or her enjoyment, then it is removable and goes to the executor.”

The alleged intention of the decedent with reference to the mirrors in question, as attempted to be brought out in a question put to one of the plaintiffs, a son, was irrelevant in the circumstances. Where the subject-matter is of an equivocal character and the question concerns the intended permanency of it, such as a sawmill structure, inquiry into the intention is pertinent, particularly where it is communicated to the party to the litigation, which was the case in Benedict v. Marsh, 127 Pa. 309. As to a party such as the defendant in this case, whose rights depend upon the effect of a formal written agreement entitling her to “household furniture and furnishings” without reservation of any kind, such an alleged prior intention of the decedent would not be controlling. See quotation from National Bank of Catasauqua v. North, supra, in which Judge Endlich wrote a most illuminating opinion on the subject, which was affirmed/in a per curiam, opinion of the Supreme Court, pointing out also (page 309) “that the question of realty or not realty depends on what the facts found show concerning the nature, object, purpose and relationship of the improvement in and to the property regarded as a dwelling-house;” pointing out, also, that while this question is primarily and usually one of mixed law and fact, and, therefore, for the jury, the principal facts when stated, are often such as will permit no other presumption than one of law. Such is the instant case.

The plaintiffs failed to meet their burden of proof to show that the two mirrors in question had lost their character as personal property and had become part of the real estate, so that it was incumbent upon the trial judge to enter a non-suit.

The motion to take off the non-suit was properly overruled.


author: Finletter, P. J.,

text:
    Black v. Herman et al.

      I. B. Botherg, for plaintiff; H. B. Goshorn, for defendants.
    Dec. 13, 1928.
   Finletter, P. J.,

The claimant was employed by the defendant as a cutter at the defendant’s place of business, which was on the fourth floor of a certain building.

The Chairman of the Workmen’s Compensation Board states the facts as follows: “He was injured by slipping upon a platform which was part of the building. Access to the building was over this platform, and it was the only way that persons employed in the building could reach their place of employment. The platform was wet and slippery, and this condition caused the claimant to fall.”

As the Chairman also says: “An employee is entitled to compensation, even though not actually engaged in the furtherance of the business of his employer, if he is injured on the premises upon which the employer’s business is carried on, if the injury is caused by the condition of the premises and if the employee’s presence thereon is required by the nature of his employment:” Section 301, Act of June 2, 1915, P. L. 736.

The appellants argue that “the premises” in question in the instant case are the rooms upon the fourth floor of the building, which were rented by the employer, and where his machinery was upon which the claimant worked. They say that the doorway, hallway and stairs leading to the fourth floor were used in common by all the other tenants, and, therefore, cannot be regarded as part of the employer’s premises.

We cannot agree with them. The lease is not in evidence, but the fact is evident that the employer was in lawful occupation of the fourth floor, and even without a written lease, he would be entitled to use, by himself and his employees, the means of access to the part of the building occupied by him. The hallways and stairways needed for access are appurtenant to the occupied rooms, and so are part of the leased premises. The only difference between hallways and rooms is that the tenant has exclusive rights over the rooms, while his enjoyment of the approaches is in common with other tenants.

The ways provided by the employer for ingress and egress to the actual place of employment have uniformly been held to be part of the premises: 1 Honnold on Workmen’s Compensation, 453.

For example, a ladder giving access to a ship: Moore v. Manchester Liners, 79 L. J. K. B. 1175; stairways within the building: Wheeler v. Contoocook Mills, 77 N. H. 551; Boody v. Company, 77 N. H. 208; Sundine v. London, etc., Co., 218 Mass. 1.

In the latter ease, claimant was injured while upon stairs, not under the control of the employer, which were the only means available to and from the premises where she was employed, “the means which she was practically invited by her employer to use.”

Again, the premises upon the upper floor of a building, where there is no approach, cannot be used as a plant or premises for an employment. The approach, which makes it possible to use it for practical purposes, is a necessary incident to, and, therefore, a part of, the plant or premises. The employer furnishes it as the only means of access to the workshops.

To hold the employer liable for injuries received upon the steps and hall- ' ways of the building in which the work is carried on, which may be said to be particularly provided for the use of workmen, does not run counter to the decisions in cases where the injury was received on the street while the employee was on his way to work, such as Maguire v. Lees & Sons Co., 273 Pa. 85; or on a private road on the property, but not in the premises used by the employer in his business, as in Boscola v. Penn Coal and Coke Co., 90 Pa. Superior Ct. 456, and Shickley v. P. & R. C. & I. Co., 274 Pa. 360. Such places are obviously not part of the premises.

But the building itself in which the work is carried on presents a different question. The tenant’s right to use of the leased premises gives him right of access to them and the further right to insist that the landlord maintain the approaches within the building in safe condition. The hallways, stairways and other means of access were, therefore, in the potential control of the tenant, -£. e., of the employer.

In Tolen v. P. & R. C. & I. Co., 270 Pa. 12, a private road, used by the employer for transporting materials, was held to be an instrumentality of his business, notwithstanding the public also used it. And in Meucci v. Gallatin Coal Co., 279 Pa. 184, a public road used and maintained by the employer for the operation of his business was regarded as part of “the premises” meant by the Compensation Act. In Shickley v. P. & R. C. & I. Co., 274 Pa. 360, a railroad used jointly by the employer and a third party was recognized as part of “the premises” where the business was.carried on, although recovery was denied for other reasons.

We do not, of course, mean that the employer is liable for injury received in the building elsewhere than upon the internal approaches to the leased premises, as in Manor v. Pennington, 180 N. Y. App. Div. 130, and other cases cited in the majority opinion in Ross v. Howieson, 198 N. Y. App. Div. 674, 676. The citation of such cases weakens the authority of the latter case, where a view was taken contrary to our opinion in the instant case.

The same court, however, held that an elevator provided for the common use of numerous tenants was part of the premises of an employer who was tenant of one of the upper floors: Martin v. Metropolitan Life Ins. Co., 197 N. Y. App. Div. 382. It is difficult to see how an elevator provided for common use differs in principle from a stairway.

So that whether because the approaches to a workroom are regarded as appurtenant to the lease, or because they are necessary to any use of the employer’s premises and, therefore, part of them, or because the employer may be said to have invited their use by the workmen (all of these reasons have been given as a basis of liability), we are of opinion that they are part of the premises within the meaning of the statute and that the employer is liable for injuries received upon them.

The appeal is, therefore, dismissed.

NOTE. — Syllabus by the Court.


author: Hicks, J.,

text:
    Commonwealth v. Dietrich.

      A. D. Knittle, for Commonwealth; E. W. Downey, for defendant.
    Oct. 15, 1928.
   Hicks, J.,

On Jan. 9, 1924, in the above stated case, this court entered an order directing the defendant to pay to the prosecutrix, Nellie Dietrich, his wife, the sum of $30 per month for her support, with which order the defendant faithfully complied until six months prior to July 23, 1928, since which time he has wholly failed to comply with this order. On July 23, 1928, this court entered a decree divorcing the said parties upon the suit of the defendant herein, John Dietrich, from Nellie Dietrich, on the grounds of wilful and malicious desertion, from which judgment of divorce Nellie Dietrich, the respondent in the divorce proceeding and the prosecutrix in this proceeding, appealed to the Superior Court on July 30, 1928.

On June 4, 1928, upon the petition of Nellie Dietrich, a rule was issued directed to the defendant to show cause why he should not be adjudged in contempt for failing to obey the order .of this court for the payment of her support, and on Sept. 17, 1928, a petition was presented by the defendant, upon which a rule was issued directed to Nellie Dietrich to show cause why the order of court directing him to pay to his wife the sum of $30 a month for her support should not be vacated or modified. The basis for this rule, as alleged in the petition, was the entry by this court of a decree of absolute divorce against Nellie Dietrich upon the grounds of wilful and malicious desertion without reasonable cause and the inability of the defendant to comply with the order of the court. Testimony was taken upon both rules.

When this case was originally heard on Jan. 9, 1924, and an order was made by this court upon the defendant to pay his wife, Nellie Dietrich, the sum of $30 monthly and to enter his own recognizance for $200, that was an adjudication by this court of the necessity for maintenance within the statute and cannot now be questioned on an application for the modification or vacation of the order, unless conditions have changed in the income of the respondent or in the marital status of the parties since the making of the said order: Com. v. Knobloch, 89 Pa. Superior Ct.‘ 216. Neither in the petition for the modification of the order nor in the testimony is there any showing that the income of the husband has decreased. The testimony shows that he averages between $155 and $160 a month, and we do not consider $30 a month excessive as support to be paid his wife.

In passing upon the question whether the marital status of the parties has changed since July 23, 1928, when this court entered a decree of absolute divorce, the effect of the appeal to the Superior Court by Nellie Dietrich, the wife, from the entry of the decree, must be considered and is of controlling importance. The judgment of this court divorcing the parties did not end the litigation and did not change the marital status of the parties, because it did not finally dispose of the question, since an appeal was taken to the Superior Court, and until final disposition of this suit, the reciprocal obligations of the parties as husband and wife continue to remain as before the institution of the divorce proceedings.

“When the Court of Common Pleas has entered a decree of divorce, an appeal to this court is of right which, until it is disposed of, suspends for all purposes the operation of the decree of the court below. The parties are still husband and wife and the action remains pending. There does not seem to be any valid reason for holding that the necessity for the maintenance of the wife ceases before the proceeding is finally disposed of merely because the court below has entered a decree which has been absolutely superseded by the appeal:” Ponthus v. Ponthus, 70 Pa. Superior Ct. 39.

Until final disposition of the divorce action, therefore, the defendant must obey the order of the court entered in the non-support proceeding. The testimony is uncontradieted that the defendant, John Dietrich, is in arrears since Jan. 22, 1928. These arrearages must be paid and the order complied with until the marriage relationship is dissolved or circumstances, now not shown, persuade this court that the order should be modified.

The rule heretofore issued to show cause why the order of this court, entered on Jan. 9, 1924, in this proceeding should not be modified or vacated is hereby discharged and the defendant is directed to pay to his wife, Nellie Dietrich, the arrearages within sixty days from this date, and to regularly monthly comply with the order of the court to pay her $30 a month, upon failure to do which, an attachment will issue.

From M. M. Burke, Shenandoah, Pa.