author: Furst, P. J.,

text:
    Jones v. Fickes.

      Justice of the peace — Appeals—Perfecting appeal — Justice as agent of defendant — Letter to justice — Appeal nunc pro tunc.

    1. A defendant in a judgment entered by a justice of the peace will not be permitted to file an appeal mimo pro tuno where it appears that he sent to the justice an unregistered letter containing the transcript, that he did not keep a copy of such letter or inquire whether the justice had received it or carried out defendant's request to the justice to perfect the appeal.
    2. In such case, the defendant makes the justice his agent and is bound by the failure of the justice to act upon the instructions.
    Rule on plaintiff to show cause why execution should not be stayed and appeal allowed. C. P. Centre Co., Dec. T., 1926, No. 60.

      Edward J. Thompson and George W. Zeigler, for plaintiff.

      F. K. Troutwine, for defendant.
    April 13, 1927.
   Furst, P. J.,

Order and decree.

And now, to wit, this 13th day of April, 1927, the above case having been presented to the court by briefs of counsel on both sides, and, after careful examination of same and due consideration of the matters involved, it is ordered, adjudged and decreed that the rule granted to the defendant to show cause why Dr. F. K. Fickes should not be permitted to perfect his appeal from the judgment of the justice of the peace nunc pro tunc is dismissed. It appearing to the court that the defendant has not shown due diligence in taking advantage of his legal rights, but has allowed an unreasonable time to elapse before raising this question. The record shows that the transcript was mailed from Mr. Troutwine’s office to the justice of the peace with the knowledge that sometimes the mails miscarry, but there is nothing shown by the record to indicate that the letter was sent by registered mail, a copy of the letter retained in the office, nor any inquiry made of the justice whether he had carried out the request sent to him from the Troutwine office, and it appearing to the court that in a matter as important as the taking of an appeal with technical provisions having to be followed, it is the duty of the one taking the appeal to see to it that it is properly lodged in the prothono-tary’s office and properly entered. It is a well-established fact that the one taking an appeal and depending upon the justice of the peace to perform such services as are referred to in this case makes the said justice his agent and is bound by the action of the ’squire, as well as failure to act. No injustice has been done to the defendant in this action, for the reason that the case could be heard on its merits in an action by Fickes against Jones. The rule is dismissed mainly upon the authorities cited in Patterson v. Gallitzen B. & A., 23 Pa. Superior Ct. 54; Hibbs v. Stines, 8 Phila. 236; Kennemuth v. Lewis, 61 Pa. Superior Ct. 251, as well as other authorities cited by plaintiff’s counsel in his brief.

The sheriff is directed to proceed with his writ and the lien of the original levy to continue. Costs to follow the issue.

From S. D. Gettig, Bellefonte, Pa.


source: Caselaw Access Project

author: STRouss, P. J.,

license: Public Domain

text:
    Guise’s Nomination Paper.

      Election laws — Nomination papers — Affidavit — Certificate of prothono-tary — Individual candidate — Act of July 9,1897.

    A nomination paper for an individual candidate designating a party is not invalid under the Act of July 9, 1897, P. L. 223, because the signers thereof have not filed with the prothonotary an affidavit setting forth that they have adopted a political appellation and have not filed with the nomination papers a certificate from the prothonotary that they had filed such affidavit.
    Objection to nomination paper. C. P. Northumberland Co., Dec. T., 1927, No. 176.

      C. M. Clement for protestant; L. S. Walter, contra.
    Oct. 20, 1927.
   STRouss, P. J.,

On Oct. 7, 1927, the respondent filed with the county commissioners his nomination paper, in which it is set out: “We, the undersigned, all of whom are qualified electors of Northumberland County, representing the Independent Party or policy, hereby nominate the following person, viz., John H. Guise, miner, 918 Chestnut Street, Kulpmont, County Commissioner.”

To this paper objection was filed on Oct. 14, 1927, after proof of service of notice of the objection was given to the nominee. The objection having been filed, the case was set for hearing on Oct. 18, 1927, due notice to be given to the nominee. On Oct. 18th, upon proof of due notice to the nominee, the case proceeded.

No answer was filed to the objection, nor was any testimony given. It was conceded that the nominee had not complied with the 3rd section of the Act of July 9, 1897, ,P. L. 223, in that five electors, signers of the nomination paper, had not filed in the office of the prothonotary an affidavit setting forth that they had adopted a political appellation to designate their policy, and that there was not filed with the said nomination paper a certificate from the prothonotary setting forth such compliance with the act. There being no answer to the objection to the paper, and the fact being conceded that the respondent failed to comply with the proviso in the 3rd section of the Act of 1897, the sole question for determination is whether or not an individual may file a nomination paper without complying with the proviso in the 3rd section of the Act of 1897, the material part of which provides as follows: “Provided, that if five of the electors composing any body making a nomination by nomination papers shall file with the prothonotary of the county in which the nomination paper or papers are to be filed an affidavit setting forth that they have adopted a certain political appellation to designate their policy, subject to the limitations of this act regarding the selection of names, that thereafter such political body shall have the exclusive right to use the said name or appellation for the election for which such nomination or nominations are made, provided that a certificate from the prothonotary setting forth such compliance with the act be filed with the nomination papers filed by such political body.”

It was said by Judge Whitehead in Hamilton’s Nomination Papers, 7 D. & C. 524:

“Was it necessary, in order to entitle the respondent to properly file his nomination paper, for five electors, composing the Independent Party, to first pre-empt the name of said party? We think not.
“The Act of June 10, 1893, P. L. 419, as amended by the Act of July 9, 1897, P. L. 223, clearly provides for three methods of nomination.
“The first method is under section 2 of the Act of 1893, which provides for the filing of nomination papers following a convention of delegates, or primary meetings of electors, or caucuses held under the rules, or any board authorized to certify nomination papers representing a political party.
“The second method is under section 3 of said Act of 1893, which provides for the filing of nomination papers by an individual not connected with, or related to, any convention, primary meeting, caucus or board.
“The petition in the case at bar was filed under this method; that is, under section 3 of the Act of 1893, as amended in the Act of 1897. Under this section, any qualified elector could file a petition as a candidate for the office of jury commissioner, provided the petition contained the names of 2 per centum of the largest entire vote cast for any officer elected at the last preceding election in the county.
“The third method is under the proviso in section 3 of the Act of 1893, as amended by the Act of 1897, and which proviso provides for the nomination of candidates when and after five electors composing any political body making a nomination by nomination papers shall file with the prothonotary an affidavit setting forth that they have adopted a certain political appellation to designate their policy.
“Under the first method of nominations, that provided for in section 2 of the Act of 1893, and under the third method, that provided by the proviso in section 3 of the Act of 1897, certain certificates must accompany the nomination paper when filed. Under the second method, that provided in section 3 of the Act of 1897, the act under which the nomination paper in this case was filed, no certificate is required.
“Counsel for objectors strenuously argues that this case is on all fours with the case decided by Judge Copeland, In re Cramer’s Nomination Papers, 2 D. & C. 46. With this argument we cannot agree.
“In that case five electors filed an affidavit in the prothonotary’s office setting forth that each was an elector of the Borough of Scotsdale, County of Westmoreland, composing a political party making nominations by nomination paper or papers, and that they adopted the name of the Citizens’ Party to designate their policy for the purpose of nominating candidates for election.
“It was under this pre-emption that the nomination paper was filed by the respondent in that case, and as the pre-emption to the party name had been claimed by the party filing the said petition in the prothonotary’s office, there should have been a certificate from the prothonotary showing these facts. Such certificate, however, did not accompany the nomination papers, and because of this the objection was sustained. It was an entirely different case from the one at bar.
“The Amendment of July 9, 1919, which has been referred to in this ease, has no bearing upon the affidavit or certificate.
“Because of the fact that the nomination paper filed in this case was filed under the second method, as above stated, no affidavit other than the affidavit made to said paper and no certificate was necessary; therefore, paragraphs (a) and (b) under said reason cannot be sustained and the same are dismissed.”

Similar are the facts in the instant case. The respondent filed as an individual and, therefore, not a political body and was not required to comply with the stipulations in the proviso of the 3rd section of the act, and the objection is dismissed.

And now, Oct. 20, 1927, after hearing the argument, the objection to the nomination paper is overruled, and it is ordered, adjudged and decreed that the nomination paper filed by John Guise is valid and that his name shall appear among the list of candidates to be voted for at the general election to be held in November, 1927. It is further ordered and decreed that W. H. Calhoun, Sr., the objector, pay the costs of this proceeding.


author: Steouss, P. J.,

text:
    Independent Party’s Nomination.

      Election law — Nomination papers — Affidavit — Certificate of prothono-tary — Acts of June 10, 1893, and July 9, 1897.

    under section 3 of the Act of July 9, 1897, P. L. 223, a nomination paper lor several candidates designating a party is wholly void, if the signers thereof have not filed in the office of the prothonotary an affidavit setting forth that they have adopted a political appellation to designate their policy and have not filed with the nomination paper a certificate from the prothonotary setting forth such compliance with the act.
    Objection by Fred. R. Dornsife et al. to nomination papers of the Independent Party. C. P. Northumberland Co., Dec. T., 1927, No. 177.

      C. M. Clement, for protestants; L. S. Walters, contra.
    Oct. 20, 1927.
   Steouss, P. J.,

The respondents in this proceeding filed what they contend to be a nomination paper, in which it is set out: “We, the undersigned, all of whom are qualified electors of Northumberland County, representing the Independent Party, Party or Policy, hereby nominate the following persons, viz.: Fred. R. Dornsife, Undertaker, 226 Chestnut Street, Sunbury, Pa., County Commissioner; John Guise, Miner, 918 Chestnut Street, Kulpmont, Pa., County Commissioner; Lincoln S. Walter, Attorney, 49 East Third Street, Mt. Carmel, Pa., District Attorney; Charles E. Klinger, Salesman, Herndon, Pa., County Treasurer; C. C. Reitz, Superintendent, Snydertown, Pa., High Sheriff.”

This paper was filed with the county commissioners on Oct. 11, 1927. On Oct. 14th, an objection was filed thereto and the hearing duly had thereon on Oct. 18, 1927. There being no jurisdictional question before the court as to the right to proceed with the hearing, the case proceeded. It was conceded at the hearing, thereby disposing of the necessity of receiving evidence, that the proviso contained in the third section of the Act of July 9, 1897, P. L. 223, had not been complied with by the respondents. This being the sole objection filed to the nomination paper in question and non-compliance with this provision being conceded, the question for determination by the court is whether a political body can file nomination papers without complying with the provisions of the proviso in the third section of the act aforesaid. This question is no longer at large under the authority of Cramer’s Nomination Papers, 2 D. & C. 46. It is true that in the Cramer case the political body undertook to comply with the requirements of the section which would give them the exclusive use of the name Citizens’ Party, but failed to obtain a certificate from the prothonotary setting forth that five electors had preempted the party name. The necessary affidavit had been filed with the prothonotary, but the certificate of the prothonotary had not been filed with the nomination paper. In the instant ease, no affidavit required by the proviso in the third section was filed with' the prothonotary, nor was any certificate from the prothonotary, as required by the third section, filed with the nomination paper. Judge Copeland, in a review of the authorities in the Cramer case, reached the conclusion that the penalty for failure to comply with the proviso was not merely the denial of the exclusive use of the name under which the nominations were made, but that the nomination papers were absolutely void. In the instant case, it will be seen, respondents totally failed to avail themselves of the provisions of the law which would have given to them, as group candidates, a party name.

We cite, with approval, what is said by Judge Whitehead in Hamilton’s Nomination Papers, 7 D. & C. 523, 524:

“The Act of June 10, 1893, P. L. 419, as amended by the Act of July 9, 1897, P. L. 223, clearly provides for three methods of nomination.
“The first method is under section 2 of the Act of 1893, which provides for the filing of nomination papers following a convention of delegates, or primary meetings of electors, or caucuses held under the rules, or any board authorized to certify nomination papers representing a political party.
“The second method is under section 3 of said Act of 1893, which provides for the filing of nomination papers by an individual not connected with, or related to, any convention, primary meeting, caucus or board.
“The petition in the case at bar was filed under this method; that is, under section 3 of the Act of 1893, as amended in the Act of 1897. Under this section, any qualified elector could file a petition as a candidate for the office of jury commissioner, provided the petition contained the names of 2 per centum of the largest entire vote cast for any officer elected at the last preceding election in the county.
“The third method is under the proviso in section 3 of the Act of 1893, as amended by the Act of 1897, and which proviso provides for the nomination of candidates when and after five electors composing any political body making a nomination by nomination papers shall file with the prothonotary an affidavit setting forth that they have adopted a certain political appellation to designate their policy.
“Under the first method of nominations, that provided for in section 2 of the Act of 1893, and under the third method, that provided by the proviso in section 3 of the Act of 1897, certain certificates must accompany the nomination paper when filed. Under the second method, that provided in section 3 of the Act of 1897, the act under which the nomination paper in this case was filed, no certificate is required.”

Thus it appears that the second section of the Act of 1893 provides for the nominations by political parties as designated therein; the third section of that act provides for other nominations. The Act of 1897 amended the third section of the Act of 1893 by providing requirements for nominations by new political bodies. The respondents in this case have not filed their nomination paper as a political party under the second section, nor as individuals under the third section, nor as a new political body under the proviso of the third section of the Act of 1897, and the nomination paper is null and void. We are, therefore, obliged to sustain the objection filed thereto. It is clear that the endeavor was to set up a new political party, and what has been said in Wakefield’s Appeal, 229 Pa. 584, is illuminating. In that case, it is stated, in a per curiam opinion, as follows: “In the organization of a new party, more or less confusion necessarily arises. Five electors pre-empt a party name for state offices and this is followed by filing nomination papers, naming the candidates. This starts the movement with the right to the exclusive use of the name pre-empted and with the nomination of persons desired as candidates. It is the foundation upon which the new party structure rests.”

And now, Oct. 20, 1927, it is ordered, adjudged and decreed that the nomination paper of all the respondents in this proceeding is irregular and void and that their names cannot appear among the list of candidates to be voted for at the general election to be held in November, 1927, under this nomination paper; and it is further ordered and decreed that the costs of this proceeding are to he borne by the respondents.


author: Potter, P. J.,

text:
    Kern’s Petition.

      Guardian and ward — Misconduct of guardian — Removal—Parties—Act of June 7, 1917, P. L. U7.

    1. Members of a fraternal and philanthropic society may petition for the removal of a guardian who has misconducted himself.
    2. A guardian of a girl fifteen years old will be removed where he has compelled his ward to do work on his farm not fitting her age or sex, has kept her from school to do his own work, and has not permitted her to associate with other young people of her own age and condition.
    Petition of Mary Elizabeth Kern, by her next friends, for the removal of her guardian. O. C. Snyder Co.

      Jay G. Weiser, for petitioners; A. F. Gilbert, for respondent.
    July 29, 1927.
   Potter, P. J.,

This is a proceeding for the removal of a guardian of a minor, the petitioners alleging, inter alia, that the guardian has not properly discharged his trust with relation to the mental and moral culture of his ward, in that she is obliged to do work unsuitable for her to do, that her education has been neglected, and that her labors are oppressive and burdensome.

This ward is now about seventeen years of age, having been bom on June 7, 1909. Her parents have been dead for a number of years. Robert F. Kern, her uncle by blood, having been her father’s brother, was appointed as her guardian some eleven years ago and has continued as such up to the present time, during which time she has been a resident in his home and family.

These proceedings were instituted by Charles R. Spaid, M. H. Bingaman and Charles E. Freed, who reside in.Beavertown, Snyder County, just outside of which this ward resides with her said guardian, the petitioners being members of the Patriotic Order of the Sons of America, of Beavertown, a fraternal organization having for one of its objects philanthropic principles generally and especially the education of the coming generation.

It is contended by the respected counsel for the respondent that because these three petitioners are not relatives of this ward, they have no standing to institute these proceedings. The Fiduciaries Act of June 7, 1917, § 53 (b), P. L. 519, provides that, “whenever it shall be made to appear to the Orphans’ Court having jurisdiction of the accounts of any fiduciary, on the oath or affirmation of any person interested, that there exists any one or more of the grounds for removal of such fiduciary enumerated in the last preceding clause of this section, such court may issue a citation,” etc. Subdivision 5 of clause (a) of section 53 of the same act provides for the removal of a guardian “when any guardian, whether testamentary or otherwise, mismanages the minor’s estate, or misconducts himself in respect to the maintenance, education or moral interests of the minor.”

It is to be noted that this act permits the petition to be made by cmy party interested. In Green’s Estate, 7 Phila. 502, it is held that any relative or friend may intervene as amicus curise, and the court will always protect trustees and fiduciaries from harassing citations. If no one but a relative of the ward was permitted to protect her interests, we could well have the pitiable spectacle of a ward with no relatives in the custody of an unscrupulous guardian gradually and quietly appropriating her moneys to himself, placing upon her arduous and burdensome tasks for which she is not fitted, neglecting her mental training, excluding her from association with other young people, and otherwise rendering her condition just the opposite of what the exuberance of youth needs for development into ripe manhood or womanhood. It is needless to further discuss this question. We are of the opinion that the three petitioners in this case, or any one of them, have full legal standing to petition for the citation, and,, in passing, we might also say that when non-relatives, persons who have no interest in the ward by either affinity or by consanguinity, intervene and bring the matter to our attention, it indeed seems to be high time that we look into this ward’s affairs very carefully.

It has been testified by various witnesses in substance as follows: That this girl attended Sunday school about twice a month; that she attended the class meeting of her Sunday school class, held at the residences of the members once a month, once in two years and three months; that she was not allowed to go to the annual class picnic of her Sunday school class; that, at the age of fifteen years, she had to get up early each morning and milk the cows; that she cleaned the manure out of the stables, her guardian being a farmer; that she carried pieces of cord-wood out of the woods when snow was on the ground; that she forked hay on the wagon in the field; that she wheeled the wheelbarrow loaded with two cans of milk; that her work was mostly about the cows and the barn; that on an extremely hot day she was in the field pulling thistles out of the wheat and oats; that she cleaned out the pig-pen, and especially on a Sunday evening between 7 and 8 o’clock; that she washed the automobile in cold winter weather; that she helped to unload corn-fodder; that she turned the wind-mill by hand; that she wheeled two bags of potatoes on a wheelbarrow; that she watched the cows in a field of high grass and was wet up to her waist; that her guardian asked her school teacher to sign a certificate that she had finished the sixth grade in public school for the purpose of getting her out of school to help him with farm work when in fact she was only in the fifth grade, which was refused by the teacher; that she was irregular in her attendance at school and was often late; that the guardian wanted to keep her out of school to help him husk corn.

Some of these allegations are denied by the guardian and some are admitted by him, and, strange to say, this ward said in open court that she liked it with her present guardian, wanted him retained and wanted to remain with him. But, taking into consideration the demeanor of the parties in court, as well as other matters brought to our attention in these proceedings, we are led to firmly believe she said this because she was told to say it. We can in no manner regard the work this girl did in and about the premises of her guardian as in any manner belonging to a woman, and especially to a young girl just passing through a critical period of her life. Many years ago, we find the women to have been the carriers of water and the hewers of stone among barbaric nations and tribes, but in this enlightened age we are glad to say that womankind has found her true sphere as the weaker sex physically, and people in these days do not approve of women performing the labors cast upon this young girl. She should have been sent to school every day, and no one should connive or design to keep her out of it. It has been said she was somewhat backward in her studies, which we regard as a stronger reason why she should have been kept in school continually in an endeavor to make up by close application what nature had withheld from her in the way of ability.

It may be that this guardian is, in his way, an upright and conscientious man, but he seems to have entirely misunderstood his duty as a guardian. If he obliged this girl to perform these enumerated tasks, then he is to be all the more severely censured. If she did them of her own free will, he should know they were too heavy and arduous for her and not work for a woman, and should have forbidden and prevented her from doing them. Taking either view of this matter, we think he was derelict in the performance of his duty as guardian, putting it in mild language. It matters little to an orphan child whether her interests are sacrificed and her prospects blighted by well-meaning ignorance or by wilful malice. Either is within the definition of misconduct, a word which applies not to the motive, but to the act: Nicholson’s Appeal, 20 Pa. 50.

In our judgment, this young girl should not have been permitted to perform the labors she did, and surely should not have been asked or commanded to do them. Nothing but ill health should have kept her out of school. She should have been permitted to associate with young people of her age. She should have been encouraged to attend church, Sunday school, the meetings and picnics of her Sunday school class and the like. In fact, everything should have been done that would round her into a useful member of society and fit her for the all-important stages in her life of marriage and motherhood. While, on the contrary, she has lived almost the life of a recluse and has had her guardian or his wife with her almost wherever she went. It is well and proper for the older ones to keep a watchful eye on the demeanor and conduct of the younger ones, but it is folly to say that a young person in her teens can find enjoyment constantly in the company of persons twenty to twenty-five years her senior. Like begets like, and wants it. Young people want the society of young people, while older ones want the society of people more of their age.

The second triennial account of this guardian was offered in evidence, which was objected to by the respondent because no reference was made to it in the petition or complaint. We admitted it because, since we are inquiring into the affairs of this guardian, we may as well look into all of them and thus prevent other subsequent litigation. While we are washing soiled linen, we may as well wash all of it. This girl is a ward of the court. She is under our care and protection and guidance, and the guardian is an officer of the court to care for her, protect her and guide her. She is so much under our ■care and protection that, even in the selection of a guardian, should she elect a person in our judgment not a proper one, we can refuse to appoint him and make an appointment of our own. Her selection is not conclusive or final. And should we know of any misconduct on his part, we can call him into court to account without any petition or complaint. And if we have any well-grounded suspicion of any mismanagement by him of his ward’s estate, it is our duty to take cognizance of it of our own volition. We can call upon him to file an account any time we deem it proper. And, to this end, we have admitted this account offered into the evidence of this proceeding, and we have even gone farther than this by calling for and examining his first triennial account., He tells us that he charged the girl no boarding, but he should not either. In case of the employment of a domestic in the household, she is paid a weekly sum and gets her boarding. In case of the employment of a farm hand, he gets a certain sum per month and his boarding. So that we are inclined to think this guardian was getting cheap labor out of his ward.

His first account shows moneys in his hands of $2564.47. All he has to pay out of these moneys is for clothing and incidentals for his ward, and still we find this sum shrinking down to the sum of $1794.91 when the second account is filed, or a shrinkage of approximately $800. This surely must be properly explained. Then, in his first account, we find that on every item of credit, money of hers he spent for her, he claims interest on each item, which he claims as belonging to him and retains. Why is this, and how can this be correct? This also needs our attention. Or he is paying for merchandise for her with her money, perhaps legitimate items of expenditure, but puts in his own pocket the interest which comes from her money on the amount expended. We fail to see how any interest can be charged on any of these items. Then, again, we find many items paid to his wife for the ward, sometimes stating what they are for and sometimes not. Why was this money paid to the wife instead of to the merchant from whom the articles are supposed to have been bought? And many of these items are lumped sums, for what? We are entitled to a more specific and itemized explanation regarding them than is thus given. And we find so many items paid to the daughters of this guardian, concerning which we are entitled to full explanation. In fact, we think these two triennial accounts filed, one on Nov. 30, 1923, and the other on Jan. 6, 1927, contain many items that must be more fully explained. As they now stand, a surcharge is imminent. Perhaps they can be fully explained. At least, we hope so.

We think we have covered the questions before us. After hearing the testimony in open court, noting the demeanor of the witnesses upon the stand and after going over the whole case at more leisure with careful and thoughtful deliberation, we are firmly convinced that this guardian has fallen far short of his official duty towards his ward from both a moral and a financial viewpoint. 'If his official misconduct arises from an ignorant conception ofi his duties, his failure towards his ward has worked irreparable loss to her. Time has gone by which will never come back to her. If his failure has been knowingly and wilful, then he is to be all the more censured.

In either event, we think he should surrender up his full guardianship, this embracing the custody of the ward as well as all her property.

And now, to wit, July 29, 1927, the citation is made absolute, and Robert F. Kern, as guardian of Mary Elizabeth Kern, is removed from his guardianship, which removal is to date from this date, and Mr. Jay J. Washam, of No. Ill North Broad Street, Jersey Shore, Penna., whose, wife was a sister of the deceased mother of this ward, is hereby appointed as guardian in his stead, he to file a bond in the sum of $4000, with security to be approved by this court, immediately, and to remove his said ward into his home and family at his earliest convenience. The former guardian, Robert F. Kern, to pay over to the new guardian from the moneys of his former ward in his hands, within thirty days from this date, the sum of $1000, and to file a full, final and detailed account of his management of his former ward’s estate from the time he received her property into his hands up to the present time to the next term of this court, after which full and final settlement will be made with the new guardian.

Prom Charles P. Ulrich, Selinsgrove, Pa.


author: Lewis, J.,

text:
    City of Philadelphia, to use, v. Wells.

      Road law — Municipal lien — Paving—Original paving.

    1. Municipal liens are presumably valid, and they put upon the complaining property owner the burden of proving clearly his right to exemption.
    2. The first paving, which exempts abutting owners from any liability for any subsequent improvement, is one that is put down originally, or adopted, or acquiesced in subsequently by municipal authority for the purpose and with the intent of changing an ordinary road into a street. Two elements are necessary to evidence this fact; the character of the construction and the intention of the municipality to convert a common road into a permanently improved street. The controlling consideration, however, is affirmative municipal intention.
    3. A road in the City of Philadelphia surfaced or paved with macadam is not to be considered as coming within the legal meaning of a first pavement so as to relieve the abutting owner.
    4. As there is a presumption in favor of the validity of a municipal lien, there is a presumption against the existence of a prior city paving.
    5. It is not required that the purpose or intention of the municipality to adopt paving in the highway as a first paving should be proved by an ordinance of city council; there may be municipal acts and circumstances equivalent to express adoption.
    6. Keeping a street in ordinary repair is a duty incumbent upon the municipal authorities under any circumstances, and the discharge of that duty is entirely consistent with the absence of any purpose or intent to change an ordinary road into a city street.
    7. Where facts are undisputed, the question whether or not an original paving is shown, prior to that for which it is sought to recover, becomes a question wholly for the court.
    Rule for judgment against defendant for want of a sufficient affidavit of defense. C. P. No. 2, Phila. Co., Dec. T., 1926, No. 614.

      W. A. O’Donnell, for plaintiff.
    April 11, 1928.
   Lewis, J.,

The defendant is a property owner on Durham Street in Philadelphia. A municipal lien was filed against his property to enforce the payment of an assessment for street paving apportioned in accordance with the front-foot rule, long prevailing under our statutes regulating such local assessments. A scire facias having issued upon the lien, the defendant filed an affidavit of defense, averring, in substance, that the paving for which the assessment was levied was not an original paving of Durham Street; that this highway prior to 1908 was a dirt road and was “first paved in the year 1908 by consent and permission of the Department of Public Works;” that this paving was paid for by the abutting owners; that it was in character composed of successive layers of stone with a top dressing, and extended from curb to curb, with stone gutters. Defendant further averred, upon information and belief derived from “examination of official records of the Highway Bureau of the City of Philadelphia, the ordinances of council, and the original owners of property abutting the aforesaid street, as well as the original contractor,” that such pavement was “passed upon, accepted and approved by the Bureau of Highways of the Department of Public Works of the City of Philadelphia in the year 1908.” In another paragraph — the sixth — of the affidavit, defendant declared, upon information and belief derived as above mentioned, that the paving laid in 1908 “changed that unpaved country dirt road into a paved and improved street, and was passed upon, approved and accepted with the intent that it might become a paved street for public use.” There was an additional averment of fact that from 1908 to 1926 “the former macadam pavement” was in public use and was cared for and repaired, dressed with tar or asphalt, from time to time, by the City.

On a motion for judgment for want of a sufficient affidavit of defense, we ruled in favor of the plaintiff and entered such a judgment. The correctness of this ruling is questioned in an appeal to the Superior Court, and we, accordingly, are called upon to file a memorandum of the reasons which actuated this court in entering the judgment complained of.

In the now classic case of Hammett v. Philadelphia, 65 Pa. 146, decided by a divided court, Chief Justice Sharswood speaking for the majority, it was ruled that “when a street is once opened and paved, thus assimilated with the rest of the city and made a part of it, all the particular benefits to the locality derived from the improvements have been received and enjoyed. Repairing streets is as much a part of the ordinary duties of the municipality — for the general good — as cleaning, watching and lighting. It would lead to monstrous injustice and inequality should such general expenses be provided for by local assessments.”

This decision was rendered on appeal by an owner of property fronting on North Broad Street, Philadelphia. That thoroughfare and the other principal Philadelphia highways had for many years been paved with Belgian blocks, and, in pursuance of an act of assembly, the city removed the Belgian blocks and laid a new pavement, assessing the cost against abutting property owners. Mr. Justice Read dissented in a vigorous opinion of several pages, being joined by Mr. Justice Williams, the dissenters contending for a construction of the Constitution and the statutes that would permit municipalities to assess against abutting property owners the cost of periodic repaving of highways without restriction other than the discretion of the legislative bodies — of course, on the assumption that the local or special benefit would equal the assessment.

While our Supreme Court thus long ago restricted the power of assessment for paving to the first or original paving of a street, yet that tribunal and the Superior Court have since rigidly adhered to the rule that municipal liens are presumably valid, and they have put upon the complaining property owner the burden of proving clearly his right to exemption. Apprehending fully this declared policy of the courts to uphold when possible the exercise of discretionary power by municipalities, counsel for appealing property owners have been, from time to time, very ingenious in their efforts to draft affidavits of defense that would prevent summary judgment being entered to enforce municipal liens for paving. In the case before us, counsel has apparently studied the line of decisions from Hammett v. Philadelphia, supra, and Philadelphia v. Eddleman, 169 Pa. 452, to the late Supreme Court case of Philadelphia, to use, v. Burk, 288 Pa. 383, and has endeavored to so frame his client’s affidavit as to incorporate therein all the averments declared to be essential in the various decisions. Yet, in our judgment, he has been no more successful than his predecessors, for the evident reason that Durham Street was one of many suburban highways paved with macadam under circumstances that have never been deemed to make the surfacing a “first paving” within the law.

“The first paving which exempts abutting owners from any liability for any subsequent improvement is one that is put down originally, or adopted, or acquiesced in subsequently by municipal authority for the purpose and with the intent of changing an ordinary road into a street. Two elements are necessary to evidence this fact: the character of the construction and the intention of the municipality to convert a common road into a permanently improved street. The controlling consideration, however, is affirmative municipal intention:” Easton City v. Hughes, 66 Pa. Superior Ct. 589.

As was said in Philadelphia, to use, v. Burk, 288 Pa. 383:

“The authorities are clear that in itself the taking over of a turnpike road is not such an adoption by a municipality as to make the surfacing then in existence come within the legal meaning of an original paving: Philadelphia v. Eddleman, 169 Pa. 452; Dick v. Philadelphia, 197 Pa. 467; Philadelphia v. Hafer, 38 Pa. Superior Ct. 382. Nor does the fact that repairs were made to the old highway, curbing directed, street railways operated, or the furnishing thereon of facilities such as gas, water or light, sufficiently indicate this: Philadelphia v. Scholl, 68 Pa. Superior Ct. 404; Philadelphia v. Hafer, supra.
“The question as to whether the condition indicated exists is one depending on the facts of each particular case. If the surfacing first put in place comes within the control of the municipality, the abutting owner is not relieved as a result, unless it appears, further, that the construction was adopted, or acquiesced in subsequently, with the-intent and purpose of changing the old road into a street. It is not sufficient that there be a recognition of it by mere user as a public highway by the municipality: Philadelphia v. Hafer, supra.

It was likewise ruled in the Burk case that, prima faeie, a road in the City of Philadelphia surfaced or paved with macadam is not to be considered as coming within the legal meaning of a first pavement so as to relieve the abutting owner; and that “municipal adoption and acquiescence cannot be assumed . . . for the burden is upon the property owner to present all matters necessary to show that he is entitled to an exemption.”

There is a presumption in favor of the validity of a municipal lien, and, hence, as was indicated in this last-cited opinion of the Supreme Court, there is a presumption against the existence of a prior city paving in such a case as is before us.

In Philadelphia, to use, v. Scholl, 68 Pa. Superior Ct. 404, the highway involved was Sixty-third Street in Philadelphia, and this street had been originally paved with Telford, or Telford macadam. The affidavit of defense not only averred that such was the character of the original paving, but declared that the highway had brick gutters and cement curb-stones, the paving extending the entire width of the street, except between street-car tracks, where the paving was Belgian blocks; that such paving had been paid for by the property owners at the time it was laid; that the city had recognized this as being an original paving; that the city had charged plumbers $6 for permits to dig up this street, while on dirt streets a charge of only $1 was made for similar permits, and that the city kept the street in repair. The Superior Court held: “All of these averments, if true, would not be sufficient to convert the street as then constructed into a permanently improved street.” Mr. Justice Kephart’s opinion pointed out, inter alia, that the appellant’s affidavit was defective, in that the acts by which the city was alleged to have ratified and adopted the paving as an original paving were not stated with sufficient definity, and that the averment that the city recognized the paving as original was a conclusion. The opinion concludes with these words: “The affidavit must state the acts by which the city evidenced its intention to adopt the paving as the original one. That the charge for permits to dig in this street differs from that made in other streets; that other improvements were in the street before the paving was laid; that property was assessed at full city rates, and that the surfacing remained undisturbed for twelve yeaTS, while some evidence, would not be sufficient to establish the municipal intention necessary in law to show either ratification or adoption.”

It is not required that the purpose or intention of the municipality to adopt paving in the highway as a first paving should be proved by an ordinance of council. There may be municipal acts and circumstances equivalent to express adoption. This has been many times ruled upon, but, as was said by Mr. Justice Potter in Harrisburg v. Funk, 200 Pa. 348, “the entire absence of formal municipal action is strong presumptive evidence of lack of municipal intent to adopt a road as a paved street. Municipal adoption or acquiescence cannot be assumed. It must be proven.”

It was further declared in the Funk case that keeping a street in ordinary-repair “was a duty incumbent upon the municipal authorities, under any circumstances, and the discharge of that duty was entirely consistent with the absence of any purpose or intent to change an ordinary road into a city street.” Also, “where, as here, the facts are undisputed, the question as to whether or not an original paving is shown, prior to that for which it is sought to recover, becomes a question wholly for the court.”

In the affidavit before us there are no facts averred which, if proven, would be inconsistent with a purpose and intention on the part of the City of Philadelphia to continue to regard and maintain Durham Street as an ordinary suburban road paved with macadam, excepting only what is involved in these words appearing at the conclusion of paragraph six of the affidavit: “The former paving . . . was passed upon, approved and accepted with the intent that it might become a paved street for public use. . . .” It will be noticed that the defendant does not indicate by whom the paving was passed upon, approved and accepted with such an intent, but if he be given the benefit of a construction that attributes such action and intention to the City of Philadelphia, still it would be of no avail to defendant, because, as was held in Philadelphia v. Scholl, supra, the averment is a mere conclusion. To assume, as stated in paragraph four, that the macadam paving laid in 1908 by the property owners was passed upon, accepted and approved by the Bureau of Highways, furnishes no evidence of anything done by the municipality beyond the performance of its duty of supervision of the paving of all highways of whatever class within its boundaries.

Defendant’s counsel conceded at the bar of the court that if the case were sent to a jury for trial he would have no evidence of a municipal purpose or intent other than what could be inferred from the facts and circumstances recited in his affidavit. Hence, there is no dispute of fact, and the question is properly one to be decided by the court as a matter of law. For the reasons indicated, we deemed the affidavit insufficient as a defense and entered judgment accordingly.


author: Martin, P. J.,

text:
    Seidle v. Seidle.

      Divorce — Indignities to person — Drunkenness.
    While drunkenness is no-t made a cause for divorce by acts of assembly, the conduct of a husband or wife given over to almost continuous drunkenness with its accompanying- evils of loss of temper, violence, use of vile language, the calling of opprobrious names and keeping the other in a constant state of suspense, anxiety and mental suffering, may well constitute indignities to the person as defined by law.
    Exceptions to master’s report in divorce. C. P. No. 5, Phila. Co., March T., 1926, No. 951.

      M. E. Herman, for libellant; Jesse Finn, for respondent.
    May 16, 1928.
   Martin, P. J.,

The libel was filed by the husband, alleging that the respondent subjected him to such cruel and barbarous treatment and indignities as to render his condition intolerable and life burdensome. An answer was filed denying the allegations of the libel.

After hearing testimony, the master filed a report finding that the libellant was not entitled to a divorce on the ground of cruel and barbarous treatment; but that he is entitled to a divorce on the ground of indignities to his person; that the libel should be dismissed as to the allegation of cruel and barbarous treatment, and that a decree should be entered for a divorce a vinculo matri-monii on the ground of indignities to the person.

Exceptions were filed on behalf of respondent to the finding of the master that the libellant is entitled to a divorce on the ground of indignities.

Libellant testified that he met the respondent in the back room of a saloon; that she was drinking at the time and he had a drink of whiskey with her, and within two weeks afterward he married her; that on the day preceding the marriage, she took him to a saloon where they had “quite a few drinks,” and then to another saloon where they had “some drinks.” That they spent the night riding around the park in his automobile, and the next morning he found he was married to her. That when the application was made for the license at City Hall, she answered all the questions, and the clergyman who married them knew that libellant was intoxicated and did not realize what he was doing.

In the course of the proceeding before the master, the libellant testified that respondent was habitually intoxicated and incapacitated from performing her household duties; that she used vile and insulting language in addressing him, and had occasionally assaulted him; that while intoxicated she attempted to cut her own throat, and her conduct during the time they lived together, caused requests to be made to them to leave their places of residence.

The respondent denied the charges. The master was justified in refusing to believe her testimony, which was not corroborated. In the application for the marriage license which she signed and swore to, she signed her name “Helen F. Murphy,” and swore that she had never been married before. It was proved that she was married to a man named Lemont, by whom she had two children, and that he divorced her.

The record of a criminal trial was in evidence before the master which contained some unsavory testimony bearing upon respondent’s moral character. She was prosecutrix in a charge against one Harold Lockyer as defendant, in which she testified that Lockyer, in company with another man, raped her. Lockyer was convicted, but when the record was exhibited to the Board of Pardons, he was pardoned. In the course of the trial, she swore that she was married to John Murphy on Nov. 18, 1918, and divorced from him on Feb. 11, 1921. In her testimony before the master she denied that she was ever married to Murphy or that she was divorced from him. She swore before the master that the libellant attended the trial of the rape case in the criminal court. Libellant swore that he was not present at the trial.

While drunkenness is not made a cause for divorce by the acts of assembly, the conduct of a husband or wife given over to almost continuous drunkenness, with its accompanying evils of loss of temper, violence, use of vile language, balling of opprobrious names and keeping the other in a constant state of suspense, anxiety and mental suffering, may well constitute indignities to the person as defined by our law.

During the time that the parties lived together the respondent was almost in an uninterrupted state of intoxication. Reprehensible as such conduct may be on the part of a husband, it borders on a calamity when indulgence in this bestial condition is personified in the wife. Qualities of tenderness and delicacy, ordinarily the chief assets of the wife, give way to the coarse, brutal and revolting manifestation of a nature lower even than that of an animal.

In the instant case, the libellant had constantly before him the unnerving anticipation of finding his wife drunk. He was repeatedly insulted by her. She threw china at him. In her state of alcoholism, goaded by the fury that liquor inspires, she attempted to commit suicide, an attempt which was thwarted by the quick action of her husband in procuring medical assistance. He gave her up once because life was intolerable and burdensome. Upon her promise to do better, he took her back, to meet with the same fate.

The master has carefully and thoroughly considered the elements of proof adduced by the libellant in support of this charge. He had the additional advantage of seeing and hearing the witnesses in person. Were the facts of this case such as to disclose temporary and spasmodic aberration from a state of sobriety, it would not be sufficient to justify a recommendation or a decree, but where, as has been shown, there is virtually a constant and uninterrupted condition of drunkenness, accompanied with acts of humiliation amounting almost to cruelty, the libellant has made out the case and should be granted relief.

And now, to wit, May 16, 1928, the exceptions filed on behalf of respondent are dismissed and the report of the master approved.


author: Ferguson, J.,

text:
    William J. Ryan, Inc., to use, etc., v. Bodek.

      Judgments — Confession—Striking off — Act of Feb. 24, 1806.

      1. Under the Act of Feb. 24, 1806, 4 Sm. Laws, 278, the prothonotary is without authority to enter a judgment by confession, unless upon the face of the instrument the amount due is shown or can be ascertained by calculation; he cannot determine questions of fact.
    2. The right to judgment as security for the debt is distinguished from the right to enforcement of satisfaction.
    3. An averment under oath by the plaintiff of a breach of a condition is sufficient to support a judgment.
    4. If judgment is to be entered in case of default, it is essential that an averment be filed stating in what rspect a default has occurred.
    5. When judgment is to be entered upon confession without the appearance of an attorney for defendant, if the amount due can be ascertained from the face of the instrument or by calculation from what appears, the prothonotary has authority to enter judgment, unless there is a condition attached to the warrant; if there is such a condition, an averment of default or of breach of condition must be filed.
    6. Where the instrument provides for payment upon completion of certain improvements and notice thereof, judgment cannot be entered upon default of payment of an instalment of principal where there is no averment of completion of improvements; but the judgment will be sustained if there are also averments of failure to pay interest or to produce tax receipts where there are such requirements in the instrument.
    7. A written promise to pay money with power to confess judgment in any court of record without territorial limitation may be entered under the Act of 1806 in any Common Pleas Court of Pennsylvania by the prothonotary thereof; and this is the case if the instrument is a bond secured by a mortgage of real estate in another state.
    Rule to strike off judgment. C. P. No. 3, Phila., Co., Dec. T., 1927, No. 12037.

      Wolf, Block, Schorr & Solis-Cohen, for plaintiff.

      Yale L. Schekter, for defendant.
    April 24, 1928.
   Ferguson, J.,

This is a rule to strike off judgment entered by confession. The original document is filed of record. It is a bond in the usual form, dated Nov. 9, 1925, for the sum of $126,980, conditioned upon the payment of $9070 upon completion of improvements, and notice thereof as set forth in the accompanying indenture of mortgage, and the balance of $54,420 within three years from its date, together with interest thereon payable semiannually at 6 per cent., and for the production of tax receipts on or before the 31st day of December of each year, and providing that if default be made in the payment of interest or instalment of principal for the space of thirty days after the same became due, or in the production of tax receipts, the whole principal sum became immediately due and payable. The instrument also contained authority to any attorney to appear for the obligor in any court of competent jurisdiction and confess judgment in case of the breach of the condition.

Judgment was entered by filing the bond and warrant with the prothono-tary, accompanied by an averment by plaintiff that default had been made in the payment of the instalment of principal, in the payment of interest when due and in the production of tax receipts. No attorney appeared for defendant to confess judgment.

Judgments by confession, under the Act of Feb. 24, 1806, § 28, 4 Sm. Laws, 278, are constantly under attack and from many angles. There are some inconsistencies in the decisions. In one respect, however, the decisions do not vary. That is, with respect to the amount for which judgment is confessed. Unless, upon the face of the instrument, the amount due is shown or can be ascertained by calculation, the prothonotary is without authority. He cannot determine questions of fact: Connay v. Halstead, 73 Pa. 354; Meyers & Jolly v. Freiling, 81 Pa. Superior Ct. 116. And the courts have been quite liberal in construing the meaning of the words “due” and “default.” Notwithstanding language plainly showing that the debts were not payable at the time the warrants were exercised, judgments have been sustained upon the theory that an instrument calling for the payment of money and being in the possession of the holder affords prima, facie proof that it has not been paid and the holder entitled to recover: Whitney v. Hopkins, 135 Pa. 246. The burden was thrown on defendant to show the contrary. The right to judgment as security for the debt is distinguished from the right to enforcement of satisfaction: Integrity Title Ins. Co. v. Rau, 153 Pa. 488. In the earlier decisions the matter of default was regarded as of so little importance that a judgment entered a year and a half before the date of the note (it being post-dated) was sustained: Volkenand v. Drum, 143 Pa. 525.

Intimations began to be thrown out, however, that if it appeared from the paper that the warrant was intended to be available only in the event of a default, or if other restriction were attached, a different conclusion might be necessary: Volkenand v. Drum, supra.

Questions soon arose over the matter of conditions attached to the warrant, and in the case of Purvis v. Dempsey, 238 Pa. 173, the subject was considered and it was held that an averment of the plaintiff, under oath, of a breach of condition was sufficient to support the judgment. A judgment entered upon an averment under oath that a default had occurred was sustained in Wurlitzer v. Pearson, 62 Pa. Superior Ct. 425. Also, in Dalton v. Willingmyre, 60 Pa. Superior Ct. 225. These cases were followed by the definite decision in Kolf v. Lieberman, 282 Pa. 479, to the effect that if judgment is to be entered in case of default, it is essential that an averment be filed stating in what respect a default has occurred.

From these decisions it may be concluded that when judgment is to be entered upon confession without the appearance of an attorney for defendant, if the amount due can be ascertained from the face of the instrument or by a calculation from what appears, the prothonotary has authority, unless there is a condition attached to the warrant. If there is such a condition, an averment of default or of breach of condition must be filed.

In the case at bar, there was not sufficient averment of a failure to pay the instalment of principal, because that payment was to be made only upon the completion of certain improvements and notice thereof, and nothing is said about completion of improvements. In other respects, however, the averment is adequate. The payment of interest and the production of tax receipts are just as important as conditions, and default in respect to them is sufficient to support the judgment.

We are not impressed with the contention of defendant that the bond having accompanied a mortgage secured upon real estate in New Jersey made this a contract which must be interpreted under the laws of that state. We cannot settle matters of the sort upon a rule to strike off, especially when plaintiff replies that the contract was made and executed in Pennsylvania. Upon its face, the judgment could be entered in this court and matters of fact ordinarily cannot be determined upon such a rule.

“A negotiable note executed in another state, with power to confess judgment in any court of record, without territorial limitation, may be entered under the Act of 1806 in any court in Pennsylvania by the prothonotary thereof:” Oberlin v. Parry, 287 Pa. 224.

Rule discharged.


author: Kun, J.,

text:
    Rhoades v. Terminal Warehouse Company.

      Negligence — Pleading — Allegata and probata — Variance—Automobile— Standard loose and dragging from truck — Name on truck — Ownership—Evidence.

    1. In a suit against the owner of a truck for personal injuries, the fact that the name of the defendant was on the truck is prima facie proof that he owned it, and that it was in charge of his servant or employee.
    2. Where, in an action against the owner of a truck for personal injuries, the statement of claim alleges that defendant so operated its truck that it came into collision with a trolley car in which plaintiff was riding, resulting in her injury, the proof is not at variance with the allegata where it appears that the contact was with a loose standard connected by a chain with the truck, and that, at the point of contact, the standard bounced up and struck the trolley window at which she was sitting.
    3. It is sufficient in such case to plead a collision by general reference to the colliding vehicle, without particularizing the specific part or portion of the vehicle involved in the actual point of collision.
    Rule for judgment n. o. v. ■ C. P. No. 1, Phila. Co., June T., 1926, No. 4515.

      A. Sellers and B. B. Simons, for plaintiff; G G. Parry, for defendant.
    May 14, 1928.
   Kun, J.,

The plaintiff was a passenger in a trolley car, owned by the Philadelphia Rapid Transit Company, on Lancaster Avenue going west. The car stopped at Forty-seventh Street to load and unload passengers. After starting his car and proceeding a car length or two, the motorman stopped it because he saw defendant's truck half a block away coming towards him on the east-bound track, with one of its standards (wooden upright post supports) out of its socket, dangling and dragging along the road at the end of a chain attached to the side of the truck. The motorman rang his gong and made motions to attract the truck driver’s attention. The truck continued coming towards the trolley car, and in passing it the loose standard bounced up and struck the glass window at the place where plaintiff was sitting, causing broken pieces of glass to cut the plaintiff about her face, and she was otherwise injured.

At the conclusion of the plaintiff’s case, the defendant moved for a non-suit on the ground of variance between plaintiff’s pleading and her proofs. The motion was denied. The defendant offered no testimony. A verdict was rendered for the plaintiff. Defendant subsequently asked for judgment n. o. v., which was refused. No testimony being offered by the defendant, every fact and inference of fact fairly deducible from the evidence must be found in favor of the plaintiff. The truck, the operation of which was alleged to have caused the injury to the plaintiff, bore the name of the defendant company. This established prima, facie proof that defendant was the owner of the truck and that it was in charge of defendant’s servant or employee: Holzheimer v. Lit Bros., 262 Pa. 150. No question of contributory negligence is involved in the case. It is clear that on the merits the case was one for the jury: Wolf v. Sweeney, 270 Pa. 97.

On the question of variance: The plaintiff’s statement of claim alleges the negligence of the defendant to have been, inter alia, the operation of its truck in such a way as to cause and allow it “to come into contact and collision with the trolley car in which the plaintiff was riding,” resulting in the injury to the plaintiff complained of. Because the body of the defendant’s truck did not come in contact with the trolley car, but the contact was with the loose standard connected by a chain which the truck was dragging along the road, which, at the point of contact, bounced up and struck the trolley window, the defendant contends there was such a variance as to entitle it to judgment n. o. v. on that ground.

The gravamen of plaintiff’s case was that the defendant was negligent under the circumstances in the operation of its truck. The proofs show clearly that a part of the truck, one of its standards, connected with it by a chain, came in contact with the trolley car window. That was the evidence of the plaintiff to support her allegation of collision. The plaintiff was not obliged to plead her evidence, though defendant might have asked for particulars on that point in advance of the trial if it deemed it important to its case. In every case where a collision with a vehicle is charged and proven, the proofs show some particular part of the vehicle as having been in the actual collision. It seems sufficient, in the first instance at least, to plead such collision by general reference to the colliding vehicle without particularizing the specific part or portion of the vehicle involved in the actual point of collision.

What was said by the Supreme Court in Wolf v. Sweeney, supra, is in point in this instance: “In giving binding instructions for the defendant, the learned court below lays stress upon the testimony as to this overhang and seems to have been moved to the conclusion that the plaintiff was depending for his proof of want of care upon testimony as to this fact, which had not been alleged as a ground of negligence in the statement filed; but the claim of the plaintiff did not rest upon such basis. The existence of this projection was a matter which it was the duty of the driver of the car to consider when the effort was made to pass on the narrow road; and the foundation for the action was the failure to use such care in the operation of the motor as a reasonably prudent man should exercise under all the circumstances of the case.”

The case was properly one for the jury. The verdict for the plaintiff was in a modest sum. Defendant’s motion for judgment n. o. v. was properly refused.


author: Gest, J.,

text:
    Price’s Estate.

      Wills — Vested and contingent remainders — Distribution—Grandchildren.
    "Where a testator creates a trust ior his children and directs that, upon the death of his last surviving child, the principal shall be divided among his grandchildren, naming one of them specifically, and if any grandchildren shall die leaving issue, such issue shall take the parents’ share, but makes no express provision to take effect on the death of a grandchild without issue during the continuance of the trust, the estate of such grandchild dying without issue is not entitled to share in the distribution of the testator’s estate upon the death of the last surviving child.
    Exceptions to adjudication. O. C. Phila. Co., Oct. T., 1881, No. 289.
    THOMPSON, J., Auditing Judge. — This trust arose under the will of testator, who died July 8, 1865, whereby he gave the residue of his estate to trustees to appropriate and apply the net rents, etc., towards the support and maintenance of his children, Joshua L. Price, Anne P. Richardson, Sarah L. Parrish (including his granddaughter, Lydia W. Parrish), Margaret S. Price and Rebecca P. Hunt, in equal shares during their respective lives, and their spouses, and unto the child or children of any of his children who should be deceased until the decease of the survivor of his said children, the issue of deceased grandchildren to take the parent’s share, and in default of issue the survivors of children and grandchildren to take their share. He further provided as follows:
    “And after the decease of the survivor of my children it is my further wish, desire and will that my estate may then be equally divided among my grandchildren; including my grand-daughter Lydia W. Parrish; born or to be born, share and share alike so that each of my grandchildren shall each receive an equal share with the others, without regard to the number of children, that each of my children may have. And I hereby authorize and direct my said Executors to assign and convey to my said grandchildren each of their respective share of my residuary estate absolutely and in fee simple. And if any of my grandchildren be then deceased, leaving issue, a child or children, such issue shall take, if one solely, if more than one equally, share and share alike, such portions, of my estate, as their parent or parents would have taken if living.”
    The present account is filed because of the death of Rebecca P. Hunt, the last survivor of testator’s children, on Oct. 4, 1927, whereupon the trust came to an end. She left a will upon which letters testamentary issued to Morris L. Parrish.
    The grandchildren of testator living at his death and born thereafter were eighteen in number, of whom nine died in the lifetime of Rebecca P. Hunt, without issue. [Here follows a list of names of grandchildren.]
    At the audit, the principal of the fund accounted for was claimed, on the one hand, exclusively on behalf of the living descendants of testator just named; while, on the other, the personal representatives of grandchildren who died without issue during the term of the trust claimed to participate in the distribution, on the ground that grandchildren took vested interests— those then in existence, at testator’s death, and those born thereafter, as of the date of birth — which interest could be defeated only by death during the pendency of the trust leaving issue.
    This brings up anew the vexed question of vested and contingent legacies.
    Where there is a present gift, as in Carstensen’s Estate, 196 Pa. 325; Neel’s Estate, 252 Pa. 394; Porter v. Bryant, 273 Pa. 435; Walker’s Estate, 277 Pa. 444, the rule is that the gift vests at the death of the testator, and is not divested by death during the life of the trust, unless the contingency upon which such divestiture is directed actually occurs. Yet, in Pearson’s Estate, 280 Pa. 224, where there was a present gift, but the legatee died before the time of distribution, it was held that the legacy did not vest until the time of distribution, Mr. Justice Simpson saying that “actual distribution to dead people is a ‘new thing under the sun.’ ”
    On the other hand, where there is no present or direct gift, but the gift is implied only from the direction to divide and pay or assign and convey, the gift is generally construed as contingent: Moore v. Smith, 9 Watts, 403; Rosengarten v. Ashton, 228 Pa. 389; Hildebrant’s Estate, 268 Pa. 132; Alburger’s Estate (No. 2), 274 Pa. 15.
    Yet, in Packer’s Estate (No. 2), 246 Pa. 116, a gift to certain grandchildren, which would otherwise have been held contingent, was held vested because the testator in another portion of the will had mentioned these grandchildren by name.
    In Rau’s Estate, 254 Pa. 464, where the trustees after a life estate in the daughter were to grant and convey, assign and transfer and set over the principal to the daughter’s children and the legal issue of any of them deceased leaving issue, and where the testator in a subsequent portion of the will referred to this share of his estate as having been “given” to the daughter’s children and the issue of such as might be dead at the time of distribution, it was held that the children’s share vested at the death of the testator.
    In McCauley’s Estate, 257 Pa. 377, where the gift in remainder was to testatrix’s sister, if living, or her children if then deceased, and to the issue of such of them as may then be deceased, but without annexing the condition “if living” to the gift to the children, it was held that the children took an absolute estate subject only to death before distribution leaving issue.
    In Jenning’s Estate, 266 Pa. 60, where the direction was to divide between testator’s three children, share and share alike, it was held that the share of a child was vested subject only to be divested by death pending the trust leaving issue.
    And so, where the gift is to a class, the members of which cannot be ascertained until the termination of the trust, it has been held that the members who are to constitute the class are to be determined at the time of distribution: Haskins v. Tate, 25 Pa. 249; Hague v. Hague, 161 Pa. 643; Billings’s Estate (No. 1), 268 Pa. 67. But where, though members of a class, the gift is to them as individuals, the rule is otherwise: Sharpless’s Estate, 214 Pa. 335.
    But to my mind it is not so important to ascertain the character of the legacies intended to be given by testator, whether vested or contingent, as it is to ascertain the persons he intended should take.
    More than a century and a quarter ago, Chief Justice Shippen, in Lessee of Hauer v. Shitz, 3 Yeates, 205, said: “The truth is that eases on wills are so various that the best law judges have told us that, although adjudged cases must be followed, otherwise the law would be uncertain, yet any cases in point on wills must be in verbis ipsissimis and made by testators in the same situation and circumstances, otherwise the intention is to govern as it appears from each will.”
    In Mulliken v. Eamshaw, 209 Pa. 226, it is said that the policy of the later cases on the construction of wills is to ascertain the actual intent of the testator without resort to artificial canons of construction or presumptions of intent from the use of certain forms of expression. This intent must be searched for within the four corners of testator’s will, but when we come to consider it and interpret its meaning we must do so in the light of all the circumstances by which, he was surrounded when he made it and by which he was probably influenced: Stambaugh’s Estate, 135 Pa. 585; and the surrounding circumstances of the testator — his family — the amount and character of his property — may and ought to be taken into consideration in giving a construction to the provisions of his will: Hermann’s Estate, 220 Pa. 52.
    And, down to Shaffer’s Estate, 262 Pa. 15, it has been uniformly held that “a testator’s indent — once ascertained — must always be carried into effect unless inconsistent with established rules of law, and will not be defeated by any technical rules of construction: Webb v. Hitchins, 105 Pa. 91; Wood v. Schoen, 216 Pa. 425; Arnold v. Muhlenberg College, 227 Pa. 321; Thompson’s Estate, 229 Pa. 542.”
    And, with reference to this question of absolute and contingent interests, the present Chief Justice, in Groninger’s Estate, 268 Pa. 184, deemed it wise to repeat, to correct a misapprehension of the bar, from the opinion of Chief Justice Brown in Marshall’s Estate, 262 Pa. 145 (149), that “the question is one of substance and not of form, and in all cases it is whether the testator intended it (as) a condition precedent that the legatees should survive the time appointed by him for the payment of their legacies; the answer to this question must be sought for out of the whole will, and not in the particular expression only in which the gift is made.”
    When we come, now, to the examination of testator’s will, we find, as said in my adjudication on the third account of the trustees in this estate, that the testator disposed of principal and income separately and independently, and that participation in principal at the termination of the trust was not conditioned in any way on participation in income during the trust’s continuance, for testator expressly declared that principal should be divided among his grandchildren per capita, while the income any grandchild might have theretofore enjoyed was a stirpetal portion.
    While the two clauses are separate and independent, it cannot be overlooked that where a grandchild was entitled to income and died pending the trust, such income passed to his issue, if he left any; and, if not, passed to the other members of testator’s family.
    When he came to dispose of principal, upon the death of all his children, a distribution in the uncertain and more or less distant future — in fact, sixty-two years distant — testator expressed himself as follows: “And after the decease of the survivor of my children, it is my further wish, desire and will that my estate may then be equally divided among my grandchildren, including my granddaughter Lydia W. Parrish; bom or to be born, share and share alike, so that each of my grandchildren shall each receive an equal share with the others, without regard to the number of children that each of my children may have. And I hereby authorize and direct my said executors to assign and convey to my said grandchildren each of their respective share Of my residuary estate absolutely and in fee simple. And if any of my grandchildren be then deceased, leaving issue, a child or children, such issue shall take, if one solely, if more than one equally, share and share alike, such portions of my estate as their parent or parents would have taken if living.”
    Under this language, it is contended that, although, in case any grandchild became entitled to income at any time during the continuance of the trust, and died without issue, testator expressly directed such income to pass to other parties entitled to income, he yet also intended that such deceased grandchild, dead perhaps for a quarter of a century, should share in principal with living grandchildren and the issue of deceased grandchildren. Testator, however, does not say “all my grandchildren,” and thus individualize them, which might suggest that he had in mind all those who had ever become members of the class, but merely “my grandchildren,” visualizing them as living, for he expressly provides that the share of a grandchild then deceased shall go to his issue. The gift to grandchildren is not a present or express gift, but merely implied from the direction to divide. However, whether direct or implied, the thought that testator, after having carefully excluded all deceased grandchildren from participation in the income and given their shares to their issue, where they left any, and to the family generally, where they did not, should intend by the language used in this clause of his will that deceased childless grandchildren should, nevertheless, share in principal, is one I find myself unable to entertain. I, therefore, hold, both on authority of the cases cited and on what seems to me to be the clear and only reasonable intent to be gathered from the will, that testator gave the remainder of his estate to such of his grandchildren born in his lifetime, or to be born thereafter, as survived his last surviving child, and to the issue of such of his grandchildren as had died leaving issue, the issue taking the share the parent would have taken if living.

      S. Slanger Iszard and Arthur E. Hutchinson, for exceptants.

      Allen Hunter White (Ballard, Spahr, Andrews & Ingersoll, with him), contra.
    April 28, 1928.
   Gest, J.,

The scheme of this will, viewed as a whole, is very clear. The principal or corpus of the estate was to be held in trust until the death of the last survivor of the testator’s children, and until that time the income was to be appropriated and applied, in the language of the testator, towards the support and maintenance of the families of his five children, including their respective husbands and wives, and their children and grandchildren. As was observed when this will was before the court, Price’s Estate, 6 D. & C. 371, the testator was actuated by patriarchal motives and intended to provide for his beneficiaries by groups or families. “So long as the trust continues the living members of the respective families of his children are to enjoy the benefit of a fifth of the income; and, on the other hand, if the line of any of his children should become extinct while the trust endures, then the income provided for that family should be added to the income provided for the surviving families.” When, further, the trust should terminate by the death of the last survivor of his children (who was Rebecca P. Hunt), the testator provided that the corpus or principal of the trust estate should “then be equally divided among my grandchildren; including my granddaughter, Lydia W. Parrish; born or to be bom, share and share alike, so that each of my grandchildren shall receive an equal share with the others, without regard to the number of children, that each of my children may have. And I hereby authorize and direct my said Executors to assign and convey to my said grandchildren, each of their respective share of my residuary estate absolutely and in fee simple. And if any of my grandchildren be then deceased, leaving issue, a child or children, such issue shall take, if one solely, if more than one equally, share and share alike, such portion of my estate, as their parent or parents would have taken if living.” Rebecca P. Hunt, the last surviving child of the testator, having now died, we are called on to construe this direction of the will.

The Auditing Judge, in a very careful adjudication, construed the will as a whole and cited many of the principal cases upon the subject of vested and contingent legacies. We fully agree with his conclusion that the clear and only reasonable intent to be gathered from the will was that the testator gave the remainder of his estate to such of his grandchildren, bom in his lifetime, or to be bom thereafter, as might survive Rebecca P. Hunt, the last survivor of the testator’s children, and the issue of such of his grandchildren as had died leaving issue, such issue taking such portion of the estate as their parent or parents would have taken if living, thereby excluding from the distribution the personal representatives of those grandchildren who had died without leaving issue. We do not think it necessary, in consideration of the testator’s plain declaration of his intention, to discuss the numerous decisions which were cited in the argument further than to say that we have arrived at our conclusion without laying any special stress on the argument drawn from the phraseology of the will, viz., that the estate “shall be divided among my grandchildren,” etc., and that the trustees should “assign and convey” their shares to their grandchildren (or their issue). This canon of construction may be followed where, as the present Chief Justice said in Groninger’s Estate, 268 Pa. 184, the will itself sheds no light upon the subject of the testator’s intention, but in the present case we do not think it necessary to rely on it, as the intention of the testator is so clearly expressed in his own words.

The exceptions are dismissed and the adjudication is confirmed absolutely.

Van Dusen, J., was absent.


author: Chase, P. J.,

text:
    Armstrong’s Petition.

      Road law — State highways — Boroughs—Occupation of borough street by State highway — Act of May H, 1915.

    1. Where a borough approves of the layout of a State highway through or In a borough street, the borough Is liable to abutting owners for damages resulting from Injuries to property.
    2. The fact that the resolution or ordinance of the borough in such case was irregular and not in accordance with the procedure established by law will not relieve the borough, if the damages were neither increased nor diminished by the irregularity.
    3. The proper procedure in such a case is the appointment of viewers to assess the damages as provided by the Act of May 14, 1915, P. L. 312.
    Petition to dismiss proceedings and strike off appointment of viewers. C. P. Clearfield Co., May T., 1926, No. 375.

      John M. TJrey, for petitioning borough; A. M. Liveright, for respondent.
    Aug. 4, 1927.
   Chase, P. J.,

A petition was presented to the court by Zelma L. Armstrong asking for the appointment of viewers to determine damages to herself and to pass upon the matter of damages and benefits in respect of all property owners affected by the building of the State highway, known as Route No. 62, through the Borough of Burnside, said petition proceeding under the provisions of the Act of May 14, 1915, ch. 6, art. ii, P. L. 312.

Upon the court appointing viewers, petition was presented on behalf of Burnside Borough to dismiss the proceedings and strike off the appointment of viewers.

This action raises the single question of whether or not, under the facts involved in this issue, the Borough of Burnside is liable for damages caused by the alleged appropriation of property of the petitioner in relocation of the highway through the lands of said petitioner and the alleged incidental damages caused by change of grade, etc.

The facts pertinent to the issue raised are as follows: State Highway Route No. 62, as established by the Act of May 31, 1911, P. L. 468, parses over Main Street in the said Borough of Burnside. That, in January, 1925, the Highway Department notified the borough authorities of its intention to construct a concrete road or street over the highway route through the borough, stating that blue-prints showing the proposed construction on said State Highway Route No. 62 through the borough had been forwarded to the secretary of council, and stating that contracts for this work would not be awarded until the borough had ordained the lines and grades as shown on the plans. It appears from the evidence that, for some reason or other, the blue-prints showing the lines and grades through the property in question were not among those forwarded to the secretary of council. As a result of the aforesaid correspondence and action on the part of the Highway Department, the minutes of the borough council, as shown by the minute-books, state the following proceedings: “Burnside, Pennsylvania, January 21, 1925. Special meeting called for the purpose of accepting or rejecting plans and grades of State road according to blue-prints as drawn up by State Highway Department. Motion by J. E. Wetzel, seconded by G. E. Bennett, that Burnside Council comply with the resolutions of the Highway Department concerning State road through the Borough of Burnside. Motion carried.”

The evidence discloses that the council filed with the Highway Department, as the action of council, the State Highway Department’s Form No. 3105, which reads as follows:

“Form No. 3105.
“Resolution of Council of the Borough of Burnside approving the lines, grades, drainage structures and all other structures appearing on plans showing proposed reconstruction work in said Borough. Clearfield Co. Route 62.
“Whereas, The Department of Highways has submitted to the Borough Council of Burnside, Pa., plans showing proposed construction work on Department of Highways Route No. 62, from Station 396+68 to Station 462+24, a distance of 6555.9 feet, as shown by the plan of said Department of Highways, approved Jan. 21, 1925; therefore,
“Be It Resolved and Ordained, on motion of J. E. Wetzel, seconded by G. E. Bennett and carried, that the Burgess and Council of the said Borough of Burnside ordain the said plans of the Department of Highways, together with the lines, grades, drainage structures and all other structures thereon shown, with full force and effect as the action of said Borough, and
“Be It Further Ordained, That all ordinances or parts of ordinances inconsistent herewith be and the same are hereby repealed.
“Passed and enacted at a session of Council of the Borough of Burnside, Pa., Wednesday, held this 21st day of January, A. D. 1925.
“Attest: (Signed) John H. Patchin, President.
“John Williamson, Secretary.
“[Borough Seal] (Stamped) 1 1119 Jan 2325.
“Approved by me this 22nd day of January, A. D. 1925.
“(Signed) Edwin E. Kantz, Per E. Y. K.,
“Burgess.
“I, John Williamson, Secretary of the borough council of the Borough of Burnside, do hereby certify that the foregoing is a true and correct copy of the ordinance duly passed and adopted at a regular meeting of the Borough Council of said Borough, held 21st January, 1925, and that the same has been recorded in the Borough Council Book and has been advertised as required by law.
“(Signed) John Williamson, Secretary.
“[Borough Seal] Clearfield Co.”

The highway was constructed as the plans of the Highway Department had provided, and as a result thereof the petitioner alleged damages caused by the taking of her private property and incidental damages by reason of change of grade, etc., in construction of said highway. As to the time when the actual taking of the property of the petitioner, if there was a'taking which produced the alleged! damages, or when the construction took place in the change of grade and lines causing damages, it does not appear; therefore, it cannot be determined from the evidence whether the Act of May 12, 1925, P. L. 593, which became effective May 12, 1925, has application with this issue or not, but under the view the court takes of this issue, it becomes immaterial whether this act applies or the Act of May 18, 1923, P. L. 252, 254.

In an examination of the testimony, it is noted that the action of council, as certified to the Highway Department by its secretary, states that the plans, etc., on Route No. 62, from Station 396+68 to Station 462 +24, a distance of 6555.9 feet, were ordained as the action of said borough. The evidence also discloses that the certified purported copy of the ordinance of council, including the highway between the aforesaid mentioned stations, covers the entire distance of the highway through Burnside Borough. It appears that the council took no action otherwise than above indicated. The cost of the construction of this highway was borne by the State. Under these facts, the petitioner denies liability.

In the case of Fetherolf’s Petition, 84 Pa. Superior Ct. 515, the court at great length sets forth the rights and powers of the Secretary of the Highway Department on public roads or streets within the limits of a borough. This decision clearly shows the distinction between roads in a borough and those in a township, the powers of the Highway Department over roads taken over which pass through townships or that are county roads being absolute, while the control of roads in and through boroughs is restricted so that the rights of the control of said roads or streets through boroughs remains in the borough, the court stating that by the provisions of section 10 of the Act of 1911, the powers granted the State Highway Commissioner under section 8 of the aforesaid act are not to include any authority on his part to interfere with the roads, streets and highways of boroughs. Under the law, the borough council alone has power to ordain and lay out new streets and to change the lines and location of existing streets. That this power has not been expressly or impliedly taken away from the borough authorities and lodged in the State Highway Commissioner. On the contrary, it is expressly and particularly preserved to the borough and withheld from the commissioner, the effect of the Fetherolf decision being that the rights of the Secretary of the Highway Department upon streets or roads through a borough are very much restricted and limited, that the general rights of control as to said streets remain in the borough, and that the change of lines of location of a street or road within the limits of a borough can only legally be made by the proper action of the borough authorities.

An examination of the acts of assembly on the subject of the powers of the Secretary of Highways in boroughs, being the Acts of May 18, 1923, P. L. 252, and May 12, 1925, P. L. 593, which have been passed subsequently to the acts considered in the Fetherolf appeal, shows that although, enlarging the powers of the Secretary of Highways as to rights! in boroughs, they do not give any power to relocate or change the lines of location, and the law as laid down on this subject in the Fetherolf case is not affected or changed by the subsequent acts of assembly.

In the instant case, the Secretary of Highways, recognizing the powers vested in the borough, requested an ordinance approving the Highway Department plans before any action towards construction of the highway would take place. A certified copy of an alleged ordinance on the subject by the borough was furnished the Secretary of the Highways. The intention of this ordinance, as indicated by the certified copy, was the appropriation of the plans of the Department of Highways “as the action of the borough.” Therefore, if private property was appropriated by the plans, it was an appropriation by the borough — the only legally constituted authority under the law to make the appropriation. The fact that the method proceeded in, in doing that which the borough had a right to do, may have been irregular and not in accordance with the procedure established by law cannot avail the borough in the avoidance of damages to citizens affected by the taking, which damages, if any, were neither increased nor diminished by the irregularity of the proceedings, and which action of the borough authorities could not have been prevented on the part of the citizens.

Under the facts in this case, to hold the borough released from responsibilities because of improper procedure on its part would be in fact holding that one could not receive recompense for injuries sustained by the unlawful acts of another, because the injury flowed from the unlawful acts. The requirement of the law as to giving notices by the borough councils when land is to be taken for street purposes is a provision for the protection of the citizens who are to be affected by the ordinance; and if the authorities in this case failed to give that notice which is required for the protection of the citizens, the borough could not be permitted to set up the failure to do those acts which are for the benefit of the citizens to defeat the claims of the citizen growing out of damages suffered as a consequence of the appropriation by the borough.

The appropriation of the land or property of the petitioner, if any, having been done by the borough, the sole question remaining is whether or not the procedure attempted by the plaintiff herein is the proper procedure. An examination of the Act of May 14, 1915, ch. 6, art. II, § 1, P. L. 312, satisfies the court that the proceedings in this case under that act are the proper method to proceed. Section 1 of said act, under chapter 6, article II, reading: “In the laying out, opening, widening, extending, vacating, grading or changing grades or lines of streets,” etc., that the Court of Common Pleas shall appoint three viewers from the board of viewers of the county, upon application, to pass upon said question of damages. This alleged appropriation of private land of the petitioner for the purposes of relocating a street through the Borough of Burnside was a lawful appropriation, and the mere fact that that street1 [was one] over which the law gives supervision and control to the borough the same as any other street, except for limited purposes, which limited purposes are vested in the State Highway Department in order that the Highway Department may improve and maintain said streets, as we view it, does not change the relation of the borough authorities to such street to such an extent as to affect the change and procedure in collecting damages by the citizen arising from the changing of grade lines and appropriation of private property.

Now, Aug. 4, 1927, motion to dismiss proceedings and strike off appointment of viewers is dismissed; and it is ordered and directed that said viewers proceed to make view and report in accordance with the act of assembly. Exceptions noted and bill sealed to the Borough of Burnside, petitioner herein.