author: Patterson, P. J.,

text:
    Loudon et al. v. Juniata Borough.

      W. C. Fletcher, for plaintiffs; J. J. Haberstroh, for defendant.
    Feb. 22, 1929.
   Patterson, P. J.,

This proceeding is brought to determine from what date the defendant is liable for the payment of interest on the judgment in this suit. The original issue was tried before a jury on Jan. 28, 1926, and the proceedings subsequent thereto have been litigated before three judges of this court. When the case was finally before us for an opinion and decree, it was submitted upon briefs, without oral argument, and, after disposing of the several legal questions involved, the following decree was entered:

“Now, Aug. 11, 1928, rule for interpleader discharged, and rule for mandamus execution for the collection of the verdict of $10,500, with interest thereon from Jan. 28, 1926, to date of payment, at the rate of 6 per cent, per annum, with costs, is made absolute.”

Following said decree, the plaintiffs proceeded with a mandamus execution to No. 103, October Term, 1928, whereupon the defendant borough filed its affidavit of defense, averring that it had already paid into the hands of W. I. Woodcock, Esq., attorney of record for the plaintiffs, on May 16, 1927, the sum of $9650, and to the clerk of the court, on the same day, the sum of $850, being full amount of said judgment, and that no interest is now due said plaintiffs after said date on any part of said judgment. The plaintiffs filed a statement in reply to said affidavit of defense and denied any authority on the part of the said W. I. Woodcock, Esq., to receive the payment made to him, or any authority from the plaintiffs or the court to pay into court the sum of $850, and demand the payment of the full amount of the judgment, with interest from the date of the judgment to the present time.

We agree with the contention of the plaintiffs that the $850 paid into court was not binding upon the plaintiffs. There is no suggestion of any agreement, expressed or implied, which would prejudice the plaintiffs in the collection of said amount, with interest to date of payment to plaintiffs. The payment of $9650 into the hands of their attorney on account of said judgment debt presents a different question. An attorney of record may receive payment of a judgment due his client, or any part thereof, so long as he does not accept in satisfaction of said judgment an amount less than the principal sum, with interest. W. I. Woodcock, Esq., was attorney of record for plaintiffs in the original case and in all proceedings subsequent thereto to May 16, 1927, and for sometime thereafter, and entered the following receipt upon the record of the case in the Court of Common Pleas of Blair County:

“Now, May 16, 1927, received from John J. Haberstroh, Esq., attorney for the Borough of Juniata, defendant, a cheek for $9650.00 on account of this judgment.” (Signed) “W. I. Woodcock, attorney for plaintiffs.”

There is no question but that counsel for the defendant and for the plaintiffs acted in good faith in this transaction. The testimony taken in the present proceeding shows that immediately upon receiving notice from their attorney, W. I. Woodcock, Esq., the plaintiffs refused to accept said payment on account of their judgment, and discharged the said W. I. Woodcock, Esq., as their counsel. Thereupon the said W. I. Woodcock, Esq., without delay, undertook to return said sum to defendant through their counsel, who refused to accept the same. The plaintiffs now seek to recover this amount, with interest from the date of the original judgment, contending that said counsel had no authority, in law or otherwise, to accept said payment. With this contention we cannot agree. We are of the opinion that the payment of said sum to counsel of record was binding upon the plaintiffs and it was their duty to accept the same from their counsel. They were not prejudiced by the acceptance of this payment on account of their judgment. It was a payment by the debtor, in good faith, to the attorney of record, and was receipted for “on account of this judgment.”

In Kissick v. Hunter, 184 Pa. 174, the Supreme Court says: “Thus it has been often held that the plaintiff’s attorney may collect the judgment, and a payment to him without execution, even long after judgment, is a good payment to discharge the debtor. . . . Office of a general retainer is to authorize the attorney to take care of the interests of his client in the litigation pending or imminent, and in so doing to take all the steps necessary or only usual and proper to that end. In a suit for a debt, therefore, the plaintiff’s attorney may not only recover a judgment, but may go on and collect it by execution or otherwise, but he may not accept satisfaction in anything but money. . . . But the interest of the defendant no more ends with the judgment than those of the plaintiff, if, in fact, they are not even more vitally involved. There is, therefore, no more reason why the attorney’s authority should be arbitrarily held to terminate at this point in one case than in the other. As already said, the plaintiff’s attorney may issue execution and control it, give time to the defendant, direct the sheriff to postpone the sale, etc. . . . And why should not the defendant’s attorney, at least in a case where execution immediately follows judgment in the suit, who was retained to defend, be presumed to be authorized to continue his care over his client’s interests? We know that it is every day’s practice for lawyers to do so, and presumptions are founded on average experiences of what like parties would do under like circumstances.”

The original litigation and all matters and proceedings in relation thereto were in the control of plaintiffs’ counsel from the time of his employment to the date of his discharge, and so long as he did nothing to prejudice the rights of his clients, the clients had no right to interfere to the injury of the adverse party.

The rights and powers of an attorney and his client are clearly defined in 6 Corpus Juris, § 147, page 843, in the following language: “An attorney may not impair, compromise, settle, surrender or destroy them (rights and powers) without his client’s consent, but all the proceedings in court to enforce the remedy to bring the claim, demand, cause of action or subject-matter of the suit to hearing, trial, determination, judgment and execution are within the exclusive control of the attorney. ... Nor will interference by a client be allowed to injure the adverse party.”

In the present case, nothing that the plaintiffs’ counsel did prejudiced, compromised, impaired, settled, surrendered or destroyed the rights of the plaintiffs.

“After an attorney has had an execution issued on a judgment, he may, by force of his original retainer, receive payment on it, and such payments will bind his client:” 6 Corpus Juris, § 166, page 655.

In Lynch v. Com., 16 S. & R. 368, it is held: “It is also within the scope of an attorney’s general employment to direct the sheriff as to the time and manner of enforcing an execution.”

And in 6 Corpus Juris, § 177, page 663, we find as follows: “An attorney has power to accept partial payments on a debt and to give receipts for the amounts so received.”

“Any revocation of an attorney’s authority after judgment has been rendered, but before payment or an assignment of the judgment, will not affect the debtor paying to the attorney in good faith, relying on his authority to receive the payment, unless it appears that the debtor had notice of the revocation or was chargeable with such notice:” 6 Corpus Juris, § 179, page 666.

In conclusion, it was right and proper for the defendant to pay all or any part of said judgment rendered against it, and it was clearly the right and authority of the counsel for the plaintiffs to receive all or any part of said judgment with or without execution and as soon as the same could be secured. The service rendered by plaintiffs’ counsel in procuring almost the entire amount of the judgment without in any wise prejudicing the plaintiffs’ right to recover the balance in full, with interest, was, in our opinion, the very best service that said counsel could render his client, and the client, instead of refusing the payment and repudiating the action of counsel, should have accepted the payment on account.

We have suggested that, in view of the confusion and misunderstanding between the parties and the long delay already occasioned, that the question of interest be agreed to, and counsel for defendant borough has expressed the willingness on the part of the defendant to pay the interest on $9650 from Jan. 28, 1926, to May 16, 1927, and one-half of the interest on said sum down to Feb. 22, 1929, and the full amount of interest on the sum of $850 from Jan. 28, 1926, to Feb. 22, 1929. The plaintiffs are allowed ten days from the date hereof to accept said interest settlement as here stated, and upon their failure to accept the same by stipulation in writing filed in court to this suit, the following decree to become forthwith in effect:

Decree.

Now, therefore, Feb. 22, 1929, upon due consideration, the decree dated Aug. 11, 1928, is modified and amended so as to read as follows: Rule for interpleader discharged, and rule for mandamus execution for the collection of the verdict of $10,500, with interest on $8650 of said amount from Jan. 28, 1926, to May 16, 1927, the date of the payment of the same to plaintiffs’ counsel of record; interest on $850 of said verdict, to be computed from Jan. 28, 1926, to date of payment to plaintiffs, interest rate of 6 per cent, per annum, with costs, is hereby made absolute.

From Robert W. Smith, Hollidaysburg', Pa.


source: Caselaw Access Project

author: Lewis, J.,

license: Public Domain

text:
    Hoagland v. Mulford.

      W. Logan MacCoy, for plaintiff; W. Horace Hepburn, Jr., for defendant.
    June 10, 1929.
   Lewis, J.,

The jury returned a verdict of $7100 for the plaintiff in this action for fraud or deceit in connection with the purchase by plaintiff of one hundred shares of stock of the American Chemical Laboratory, Inc., in reliance upon certain representations made by the defendant. We now have before us the defendant’s motions. According to the testimony of the plaintiff, the defendant, in November or December of 1921, came to see him regarding the purchase of stock in the American Chemical Laboratory, Inc., of which the defendant was president, and stated “the company was in a flourishing condition, making lots of money, had been paying, and was paying, at that time dividends in the amount of 8 or 10 per cent, per annum on the common stock;” that he relied upon these representations, having no other source of information, and invested $5000 in the company. Accountants then testified that the company had never paid any such dividends, and, indeed, the payments actually made to stockholders were more in the nature of payments to a portion or group of stockholders than they were dividends. It was contended on behalf of the defendant that all stockholders who had paid for their stock in full received dividends, but the fact that many more stockholders received the January, 1921, dividend than the next two dividends, rather precludes the success of such a contention, it being admitted that there were no sales or transfers of stock during the interval. The defendant sought to explain the matter of the dividends by stating that dividends were paid from different bank accounts and certain of the records were lost. All this was left to the jury. -

The first contention by the defendant is that the claim of the plaintiff has been barred by the statute of limitations. While the representations were made in November or December of 1921, and the stock purchased in January"' of 1922, the present proceeding was not instituted until November, 1928. It appears that the plaintiff had theretofore instituted an action .of assumpsit against defendant, but when it developed at the trial that the money had gone into the company, although its books did not reveal the receipt of such funds, the plaintiff suffered a voluntary non-suit and brought the present action of trespass. Defendant’s position regarding the statute of limitations is advanced now for the first time. Although an affidavit of defense was filed, such a defense was not made therein. Nor was it made at any time during the trial. It seems to us, therefore, that, if it is possible for a defendant to waive the defense of the statute of limitations, there has been such a waiver in this case.

The defense of the statute need not be pleaded in the affidavit of defense in order to be taken advantage of; this appears to be sound so far as actions of trespass are concerned. While it is stated in American Products Co. v. Refining Co., 275 Pa. 332, that “certain personal defenses must be affirmatively set up and established, otherwise they are treated as waived, so a failure to expressly aver the fact that the suit is barred by the statute of limitations prevents objection to recovery on this ground,” this language must be limited to actions of assumpsit, which the court under the facts of the case was then discussing. In Fields v. Philadelphia Rapid Transit Co., 273 Pa. 282, 286, it is said: “The action was one of trespass, and the only penalty for failure to file an affidavit of defense was to admit the matters especially designated in section 13, Practice Act of May 14, 1915, P. L. 483.” In Martin v. Pittsburgh Rys. Co., 227 Pa. 18, it is specifically stated that the statute of limitations need not be pleaded in an action of trespass brought under the Act of April 26, 1855, P. L. 309, by a widow to recover for personal injuries to her husband resulting in his death, since the act itself required suit within one year. The court did, however, speak of raising the question at trial. On the other hand, the authorities make it clear that the mere failure to bring an action within the period prescribed by the statute of limitations does not bar the action, but such fact must be set up and relied upon as a defense: Barclay v. Barclay, 206 Pa. 307. “If the defendant does not choose to make it, it is not a part of the case at all:” Carter v. Vandegrift, 74 Pa. Superior Ct. 26. In Gill’s Estate, 268 Pa. 500, we have a case in which the defense was raised too late. The statute was not relied upon as a defense at the audit, and was first suggested upon the filing of exceptions to the adjudication. The Supreme Court stated: “It was then too late.” The audit in the Orphans’ Court procedure corresponds to the trial in the Common Pleas. It is our opinion that while in an action of trespass the failure to set up the bar of the statute in an affidavit of defense, whether one be filed or not, will not preclude the defense at a subsequent time, yet if the defendant intends to use it as a defense he must present the point at trial. Not having been so -presented here, the defense is waived.

The next contention of the defendant is that the statements alleged to have been made by defendant regarding the payment of dividends w'ere immaterial if in fact the company was actually earning money at the stated rate, and, further, that the falsity of the statement regarding the payment of dividends was mot established by competent evidence. We find no force in this contention. To substantiate the latter part of the argument, defendant points to the testimony of the accountants that they had received certain letters from stockholders regarding the non-payment of dividends. This was done as a matter of confirmation only. The testimony regarding the financial condition of the company and the payment of dividends was based upon an examination of the books and cash records themselves. No objection to the testimony as to the confirmation by letters from stockholders was made at the time it was given, although there was subsequently a motion to strike it out. The trial judge was of the view that the motion came too late, and in this, upon review, we feel there was no error.

Finally, the defendant argues that the testimony shows that the statements alleged to have been made by the defendant were not the sole inducing cause of plaintiff’s purchase of the stock, and that there was no adequate proof of the damage suffered. It is true that plaintiff, in making the investment, was “somewhat influenced” by the fact that his friend Doctor Burd was also a stockholder. On the other hand, our examination of the authorities does not indicate that misrepresentations, knowingly made, must be the sole inducing cause of the other’s action resulting in loss. It is true the representations must be relied upon, and in this case plaintiff categorically stated that he had so relied. In almost everything we do there are many surrounding circumstances which go to influence us in our decisions, but in this case we deem the testimony sufficient in its showing that the plaintiff acted as a result of the picture painted by defendant of the then existing situation so far as the company was concerned. The “sales talk” was given to plaintiff by defendant (this was only inferentially denied by the defendant), and we would not be justified in taking away from plaintiff the benefit of the findings in his favor by the jury on the sole ground that his friend Doctor Burd was also a stockholder and officer of the company in question.

As to the matter of damages, the testimony supports the finding of the jury that plaintiff suffered a loss of the entire amount invested on the faith of defendant’s representations. No dividends were ever paid on the stock, and in fact the stock’s only worth at the time of its purchase was the possibility that the company might prove a success.

We have examined the other matters raised in connection with defendant’s motion for a new trial and have concluded there is no merit in any of them.

And now, June 10, 1929, defendant’s motion for judgment non obstante veredicto and for a new trial are discharged.


author: Martin, P. J.,

text:
    Oberholzer v. Oberholzer.

      W. W. Smithers, for motion; Fox & Rothschild, contra.
    April 19, 1929.
   Martin, P. J.,

This suit was instituted against the owner of an automobile by the plaintiff, who was injured while a passenger in the automobile, which was operated by a person with the permission of the owner.

A statement of claim was filed alleging that it was the negligent operation of the automobile that caused the injury to the plaintiff and averring that by the law of New York, where the accident happened, “every owner of a motor-vehicle operated on a public highway is liable for injuries to persons resulting from negligence in the operation of the motor-vehicle in the business of the owner, or otherwise, by any person legally using or operating the same with the permission, express or implied, of such owner.”

The statement of claim alleges that the automobile, at the time of the occurrence, was used and operated by a chauffeur under the express invitation and permission of defendant.

An affidavit of defense raising questions of law was filed, averring that plaintiff is not entitled to recover, “(1) Because it appears by the statement of claim that this action is founded exclusively upon an alleged liability accorded by statute in the State of New York holding all owners of automobiles liable for injuries resulting from the use of the same, irrespective of the relationship of master and servant and the doctrine of respondeat superior which is not in accordance with the law of the Commonwealth of Pennsylvania and is opposed to the general public policy thereof. (2) Because it does not appear from the statement of claim that the said automobile was being driven by any servant, agent or employee of the defendant on his business. (3) Because it does not appear by the statement of claim that the defendant was in the said automobile or present when the said accident occurred or had any knowledge of the whereabouts of the said automobile at the time of the happening thereof.”

When an action is instituted to recover damages for an injury sustained in a foreign jurisdiction, the law of the place where the injury occurred, not the law of the forum, applies: Clark v. Best Manuf. Co., 243 Pa. 353.

Comity will enforce rights, not in their nature local and not contrary to the policy of the government or tribunal, no matter where arising, and without regard to whether they are of common law or statutory origin: Usher v. West Jersey R. R. Co., 126 Pa. 206, 210.

To justify a court in refusing to enforce a right of action which accrued under the law of another state because it is against the policy of our laws, it must appear that it is against good morals or natural justice or that for some other reason the enforcement of it would be prejudicial to the general interests of our citizens.

“The statute of another state has no extraterritorial force, but rights under it will always, in comity, be enforced, if not against the policy of the laws of the forum. In such cases, the law of the place where the right was acquired or the liability was incurred will govern as to the right of action, while all that pertains merely to the remedy will be controlled by the law of the state where the action is brought. ... It is difficult to understand how the nature of the remedy, or the jurisdiction of the court to enforce it, is in any manner dependent on the question whether it is a statutory or a common law right. Whenever, by either the common law or the statute law of a state, a right of action has become fixed and a legal liability incurred, that liability may be enforced and the right of action pursued in any court which has jurisdiction of such matters and can obtain jurisdiction of the parties. ... It would be a very dangerous doctrine to establish that in all cases where the several states have substituted the statute for the common law the liability could be enforced in no other state but that where the statute was enacted and the transaction occurred:” Knight v. West Jersey R. R. Co., 108 Pa. 250, 253 (quoting from Dennick v. Railroad Co., 103 U. S. 11).

The New York statute is not contrary to the public policy of this Commonwealth and the law is entitled to be recognized under the comity between the states.

It is not necessary for the automobile to have been driven by a servant, agent or employee of the defendant, or on his business, nor is it necessary for the defendant to have been present when the accident occurred or to have knowledge of the whereabouts of the automobile at the time of the happening of the accident.

The questions of law raised by the affidavit of defense axe not sufficient to prevent the entry of judgment.

And now, to wit, April 19, 1929, the affidavit of defense raising questions of law is not sustained. Defendant is given fifteen days to file a defense to the averments of fact set forth in the statement of claim.


author: Gest, J.,

text:
    Mears’s Estate.

      Scott Seddon, Andrew R. McCown and Frederic L. Clark, for next of kin, exceptants.

      R. Sturgis Ingersoll, contra.
    July 19, 1929.
   Gest, J.,

The Auditing Judge has discussed the interesting question raised in this case in a very careful adjudication, and we are satisfied that his award of the residuary estate was correctly made.

It is very clear, and is, indeed, conceded, that the bequest of the residuary estate of the testator is for a charitable use. The next of kin of the testator contend, however, that the bequest, which is in terms given to the President and Fellows of Harvard University, is conditioned upon its acceptance by the legatee, and as the legatee has declined to accept it, the testator has died intestate with respect to his residuary estate, or, perhaps, it should be more accurately stated, a resulting trust ensues for the benefit of the next of kin.

The bequest of the residuary estate was declined by the President and Fellows of Harvard University, who stated in their resolution on Nov. 29, 1926, that they felt that the corporation would be unable to apply the legacy in accordance with the desires of the testator.

We discover no ground for the argument that this Is a conditional legacy such as was bequeathed in The Domestic and Foreign Missionary Society’s Appeal, 30 Pa. 425; White’s Estate, 174 Pa. 642; Seagrave’s Appeal 125 Pa. 362, and Cherry v. Mott, 1 Mylne & Craig, 123. Of course, the will clearly expresses an intention to make a gift to Harvard University, to be used for a special purpose, but this does not make it a gift on condition. Harvard University is not the object oí the trust, but merely the instrument to carry it into effect. This is the simple case of a bequest to a certain corporation in trust for a charitable use, which, for reasons satisfactory to the trustee, has been declined. If a trustee so declines to accept the trust and act, the charitable use is not destroyed or affected in any way by such a renunciation. The court will not allow the trust to fail for want of a trustee, but will appoint a substituted trustee under section 56 (b) of the Fiduciaries Act of 1917, and the Auditing Judge, in the exercise of his judicial discretion, in which we concur, awarded the legacy to the Jefferson Medical College and ordered security to be entered in the sum of $75,000, conditioned upon the performance of its duties as such trustee.

We do not see any reason in this case for the application of the cy pres doctrine in the present circumstances of the ease. The purpose of the charitable gift has not failed; it is not so vague or imperfect as to be incapable of execution, nor is it impossible to carry it into effect. The cy pres provisions of the Act of May 23, 1895, P. L. 114 [amending and re-enacting the Act of April 26, 1855, § 10, P. L. 328], therefore, need not especially concern us. The authority given by this act to appoint a trustee is a different matter.

Prior to this act it would seem that the Orphans’ Court did not have statutory authority in the case of a charitable trust to appoint a trustee where none existed, or where the objects of the charity depended upon the discretion of the last trustee. The Act of 1855 corrected this, and, moreover, provided for the application of the cy pres doctrine in order to carry into effect the intent of the testator where the objects of the trust were indefinite, uncertain or ceasing, etc., but section 56 (b) of the Fiduciaries Act, above mentioned, which is new in that act, provided generally for the appointment of a testamentary trustee in all cases when an entire vacancy existed. The provisions of the Act of 1855, above mentioned, are severable and should not be confused. In other words, the appointment of a trustee for a charity, when no trustee exists, is not in exercise of the cy pres power of the court.

It is advisable for us, in this connection, to refer to the resolution of Jefferson Medical College, setting forth the methods by which it proposed to carry out the provisions of the trust, which the Auditing Judge stated met with his approval. We are of opinion that it is premature at the present time for the trustee to state in detail its proposed administration of the trust or for this court to direct or advise it concerning the same. The will speaks for itself, and it will be the duty of the trustee to carry it out, and of this court to see that this is done. At the argument of the case before the bar of the court, the learned counsel for the Jefferson Medical College stated categorically, in answer to the inquiry of the court, that the trust was accepted according to the directions of the will. The Auditing Judge required security to be entered by the trustee, and directed it to file an account at the expiration of five years showing its administration of the trust, and at the audit thereof the court may determine whether the trust has been fulfilled in the manner intended by the testator, or whether it is necessary to invoke the cy pres jurisdiction of the court. A similar order was made in James’s Estate, 9 D. & C. 639.

The exceptions are dismissed and the award made by the Auditing Judge is confirmed absolutely.

Lamorelle, P. J., and Van Dusen, J., absent.


author: MacNeille, J.,

text:
    Penn Beverage Company v. Mackey et al.

      James F. Masterson, for plaintiff.

      G. Coe Farrier, Assistant City Solicitor, and John A. Boyle, for defendants.
    June 24, 1929.
   MacNeille, J.,

The Penn Beverage Company, a corporation organized under the laws of the State of New Jersey, filed this bill in equity, seeking an injunction against Harry A. Mackey, Mayor of the City of Philadelphia; Lemuel B. Schofield, Director of Public Safety; and William B. Mills, Superintendent of Police for the City of Philadelphia. Plaintiff seeks to restrain the defendants, their agents, employees and subordinates, from interfering with it in the lawful conduct of its business. The bill was filed on June 15, 1929, and a hearing on an application for a preliminary injunction thereunder was fixed for 10 o’clock, Thursday, June 20th. The defendants filed no answer to the averments in the bill, but filed an answer raising questions of law under Rule 48 of the Supreme Court Equity Rules, declaring:

1. The bill is defective, inasmuch as it does not name John M. Monaghan, District Attorney of the City and County of Philadelphia, as defendant.

2. The District Attorney is a proper party defendant.

3. That, by virtue of the so-called Snyder Act, a court of chancery has no jurisdiction in cases of seizure of liquor; and

4. That the plaintiff has an adequate remedy at law to reclaim the goods seized by the procedure provided in the Snyder Act.

Discussion of a/nswer raising questions of la/w under Rule If8.

Defendants seem to have misapprehended the nature of the bill filed. While there are some references to seizures that have been made of the product of the Penn Beverage Company, plaintiff apparently included that as part of the averment to show the intention of the police department to continue interfering with the conduct of the plaintiff’s business. There is not and cannot be in this proceeding any effort to reclaim the goods involved, even if illegally seized. Any product of the plaintiff which has been seized has already started on its course in the jurisdiction of the Quarter Sessions Court and must end there. This court has no jurisdiction over the seizures that have been made. If there were such an attempt in this bill, then the defendants would be properly raising questions of law.

The first exception raised by the defendants is that the District Attorney of Philadelphia should be specifically named a party. This must be dismissed because he is in no wise a party to this dispute.

The second point raised by defendants must be dismissed for the same reason.

The third point raises the question that the Snyder Act alone controls, and since it places enforcement in the Quarter Sessions Court of the county in which the seizures are made, a court of equity can have no jurisdiction. This is true, but what is prayed for is an injunction to prevent the police from interfering with the plaintiff’s lawful conduct of its business. The point raised is neither material nor relevant to the issue raised by the bill.

The fourth point is dismissed because, in the opinion of the court, there is no adequate remedy at law for the lawful conduct of plaintiff’s business.

Therefore, the court dismissed the answer filed by defendants raising questions of law.

Discussion.

This case then comes on for hearing on bill filed. While there are no averments on the part of defendants to deny the averments of fact contained in the bill, yet at the hearing the court directed and permitted the defendants to offer any testimony that would be relevant had they filed, an answer denying all the averments of the bill.

Plaintiff showed on its own behalf that it, the Penn Beverage Company, is a corporation under the laws of New Jersey engaged in the manufacture and sale of cereal beverages and malt tonic at No. 1306 Fitzwater Street, in the City of Philadelphia. It showed that, for the purpose of the manufacturing, selling and transporting of this tonic, it was in possession of what purport to be duly authorized and lawfully issued permits under the laws of the United States and regulations issued thereunder and also duly authorized by the laws of the State of Pennsylvania. It offered in evidence permit Pa.-L-183, signed by or for Samuel O. Wynne, Prohibition Administrator for this district, which permit is dated Dec. 27, 1928, and is to remain in effect until Dec. 31, 1929. This is what is commonly called a cereal-beverage permit, and under it plaintiff manufactured a beverage known as near beer. The defendants raised no dispute as to this permit or as to the manufacture, sale or transportation of the near beer thereunder. Defendants volunteered to return at once to the plaintiff such seizures of this cereal beverage as they have made.

In addition to this permit there was offered another permit, known as Serial No. Pa.-H.-18558, under which the plaintiff is subject to all the conditions thereinafter stated and to all the provisions of the laws relating to intoxicating liquor of any State in which the privileges therein referred to are exercised. This permit was issued May 5, 19291, by, and signed by, Ambrose Hunsberger, acting prohibition administrator, and permitted the plaintiffs to manufacture and distribute a medicinal tonic, conditioned upon the product not being used for beverage purposes, and the permittee is to give its active aid to the department in preventing it from being so used; and should it at any time be made satisfactorily to appear that it is being used for beverage purposes in any appreciable quantities, and that this cannot be prevented within a reasonable time, the authority for its manufacture and use is thereupon withdrawn.

The second paragraph directs that the permittee may sell the tonic to wholesale druggists, retail druggists, etc., hospitals, physicians, sanitariums, convents and monasteries, and when sold to wholesale druggists or drug jobbers it shall be with the understanding that it may be sold to retail druggists only, and that should such retail druggists not prevent its use for beverage, then such wholesale druggist or drug jobber shall forthwith take up all remaining stock in such retail druggist’s hands and thereafter refuse to furnish him with supplies.

These are the parts of the permit that are pertinent to the present inquiry.

There is no contention that the permittee has violated any of the conditions, except that the defendants sought to show that in one instance, a few hours before this proceeding, a prohibition officer purchased from a druggist sixteen bottles of malt tonic, telling the druggist that he desired it to drink. There is no evidence that this fact had been made known to the plaintiff or that it had any opportunity of knowing. One other instance shown is the sale of this product to the Lehigh Drug Company, which company, after the sale of the goods, came under suspicion as not honestly distributing the tonic for purely medicinal purposes. But in this instance it was shown that Major Wynne’s department drew the plaintiff’s attention to this and that immediately the plaintiff discontinued business with the Lehigh Drug Company and removed from its premises all of plaintiff’s product. The evidence further establishes that its truck brought this product to Philadelphia; that, due to the fact that the truck broke down, it arrived at the plaintiff's place of business late at night, whereupon it was seized by the police. There was no evidence to show that the plaintiff was seeking to evade the requirements of its permit, but there was evidence to show that it was seeking to carry out its obligations to the Government at the very time its truck was seized.

These are the only two instances offered in evidence by defendants to show diversion of the product. It is our opinion that they not only failed to establish a diversion, but that they establish no reasonable ground from which diversion could be deduced.

The court finds, then, that the plaintiff is manufacturing, selling and transporting this medicinal tonic, called malt tonic, under permits issued to it by the Federal Government, and that it has in every way obeyed the terms, rules and regulations of the permits and that there has not been shown to this court even the suspicion of a violation; that it has manufactured in accordance with the permit; has sold only to the parties designated by the permit, and has immediately obeyed notice sent by the department to take the goods back from a suspected violator of faith; and although permitted to manufacture tonic containing 2 per cent, of alcohol, it has in many instances manufactured it containing 1.61 per cent., and in no instance has it contained over 2 per cent.

There remains yet to be determined whether or not the Federal Government has any right to issue the permit, as it has assumed to do. To determine this necessitates an inquiry into the state of the prohibition law. The prohibition law is based entirely on the 18th Amendment to the Constitution of the United States. Section 1 provides: “The manufacture, sale or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from, the United States . . . for beverage purposes is hereby prohibited.” Section 2 provides: “The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation.” In order to effectuate this amendment, Congress passed what is commonly known as the Volstead Act, which provides: “When used in Title II and Title III of this Act, the word ‘liquor’ or the phrase ‘intoxicating liquor’ shall be construed to include alcohol, brandy, etc.,” and, in addition, any spirituous, malt or fermented liquor, whether medicated or not, containing one-half of 1 per cent, of alcohol by volume which are fit for use for beverage purposes: Provided, that the foregoing definition shall not extend to beverages that contain less than one-half of 1 per cent, of alcohol by volume. Section 7 of Section 1, Title II, says: “'Regulation shall mean any regulation prescribed by the commissioner -with the approval of the Secretary of the Treasury for carrying out the provisions of this Act, and the commmissioner is authorized to make such regulations.” This act has been amended by section 4 o£ Nov. 23, 1921, 42 Stat. at L. 222. Section 4 of the National Prohibition Act provides, inter alia, as follows: • “The articles enumerated in this section shall not, after having been manufactured and prepared for the market, be subject to the provisions of this Act if they correspond with the following descriptions and limitations:

“ ‘(h) .Medicinal preparations manufactured in accordance with formulas prescribed by the United States Pharmacopoeia . . . that are unfit for use for beverage purposes.’ ”

Under these sections, then, the prohibition department assumed to issue the permits hereinbefore referred to, and they did so under regulation 60, revised March 19, 1924, section 802. The question is nov) raised for the first time as to the right of the Federal Government to issue permits under this regulation. This practice has been acquiesced in and this course of conduct pursued without questioning until now. All the authorities seem to indicate that the Federal Prohibition authorities are within their rights in issuing these permits. They are required, however, to exercise discretion in determining whether the product is for medicinal purposes or for beverage purposes. The defendants have raised the point that it is for the chancellor in this hearing to determine whether or not this product is fit for beverage purposes. It would seem that this matter should be decided by the regulatory authorities, but whether this be true or not, the court has taken such evidence as the defendants chose to offer on the subject.

Just exactly one-half of the chemists or doctors called to the stand said that it could be used for beverage purposes, and the other half said it was absolutely unfit for beverage purposes. They all admit that it has been used for many years for so-called medicinal purposes; that it contains starches and sugars practically in a predigested form, and that it has always been considered of value as a form of nourishment for nursing mothers. The evidence further shows the tonic is manufactured in accordance with formulas prescribed by the United States Pharmacopoeia. There has been no evidence offered to the court as to the consumption of this tonic, except the only instance of the prohibition officer who drank two bottles.

However, in the permit itself ample provision is made to control the situation, even if it appears to the department that there may be difficulty in preventing this product from being used as a beverage. If there is such difficulty, the permit may be immediately withdrawn and the permittee ordered to recover from every person the product which has been sold to him. This seems to be a very effective remedy, and if there is even danger of it being used for beverage purposes, there is no reason why the department should not exercise this power under the permit. The administration of the prohibition enforcement regulations in this district seems to be in very competent hands, and the court assumes that there will be no hesitancy on their part in exercising their authority. We have great confidence in this, knowing, as we do, that this department, through its many agents, has the very best facilities to obtain this information and will act immediately and effectually upon it. We are of opinion that the Federal permits have been regularly and properly issued and have been obeyed.

Assuming that the Federal permits have been properly issued and have been lived up to by the plaintiff, there remains to consider the further question as to the plaintiff’s rights under a permit which it has offered in evidence which has been issued by the authorities of the Commonwealth of Pennsylvania. Plaintiff offers in evidence permit issued by the Pennsylvania Alcohol Permit Board, Form 3, General No. 203, Serial No. G-67, authorizing the Penn Beverage Company to operate a brewery or cereal beverage plant at No. 1306 Fitzwater Street, Philadelphia, saying: “This permit authorizes the permittee to manufacture . . . use in the process of manufacture . . . sell at wholesale and remove alcohol or alcoholic liquid produced in the process of operating a brewery or cereal beverage plant, all in full accordance with the laws and regulations of the United States and the Commonwealth of Pennsylvania.” This permit should be read in the spirit of the Pennsylvania Prohibition Act, commonly known as the Snyder Act. Section 2 (a,) sets forth: “The phrase ‘intoxicating liquor’ as used in this act shall mean anything found and determined, from time to time, to be intoxicating by Act of Congress passed pursuant to, and in the enforcement of, the Constitution of the United States.” Section 13 of the same act provides: “In any prosecution under this act when proof has been given in evidence of the manufacture, sale, etc., the same shall be prima fade evidence that the same was so manufactured, sold, etc., for beverage purposes, but this presumption shall not apply to the manufacturing, furnishing, transportation, possession, delivery, etc., of medicines nor to the sale of such by or to registered pharmacists and regularly licensed physicians or others lawfully authorized to buy and sell such medicines, nor to the sale of intoxicating liquor for medicinal purposes” by or to such party, “nor shall it apply to anything unfit for beverage purposes, etc.”

Section 17 provides (the board created under this act) : “The board shall have the power to make and promulgate appropriate rules and regulations for carrying into effect the provisions of this act: Provided, That, as far as practicable, the rules and regulations of the board shall conform to the rules and regulations promulgated by the appropriate agency of the government of the United States for carrying into effect the provisions of any act or acts of Congress regulating, etc., of any alcohol or alcoholic liquid or intoxicating liquor.”

There seems to be ample authority under the Snyder Act for the State board to issue its permit. It does not appear that Pennsylvania has gone any further, nor has it intended to go any further, than the Federal Government itself has gone in controlling and regulating the sale of liquids with alcoholic content. It would be indeed diificult for the State Government to set up as elaborate methods and machinery as are already in use by the Federal Government. Apparently, the whole spirit of the Pennsylvania act was to concur with the Federal Government in an even and uniform enforcement of the Federal Government regulations.

The court is not unmindful of the fact that the prohibition law should be liberally construed to effectuate enforcement, and this in spite of the fact that it is contrary to the principle that penal statutes must be strictly interpreted, but the court is mindful of the fact that the enforcement of this law is one of the Government’s greatest problems; that it is a law of the land adopted by a majority of its citizens, and that, although sumptuary in character, it is meant for the sanitation of the people, for their moral uplift and physical and mental betterment; that every aid should be given to effectuate this purpose. It is a law that should be enforced by constituted authorities, and yet its greatest enemies may prove to be the officials or persons who attempt such drastic interpretation as to deny to the citizenry, or part of the citizenry, those preparations which are regarded by them as medicinal in value. Ordinarily, this question should not be determined by the opinion of the consumer, but we have the opinion of the Prohibition Department of the Federal Government, backed up as it has been by the testimony in this case, that this preparation is medicinal in character. It is possible for it to be used as a beverage by some, just as there are some foolish enough to drink laudanum for that purpose, but it is evident that this alone does not destroy its character as medicine. Apparently, the Federal authorities prefer to await evidence that it is difficult to prevent it being used as a beverage before they act. It may be that the time has arisen for them to act, but, as already indicated, the court feels that if they are not already in possession of the facts, they should immediately ascertain them. If there is a real difficulty in preventing this product from being used as a beverage, the remedy is in their hands. The court has not found in this case any evidence that the plaintiff has been violating any law. In view of the fact that the police authorities of the City of Philadelphia have indicated their belief that the conduct of the plaintiff, as shown in the testimony, is a violation of the law and that they will proceed to molest it in the maintenance of its business, a preliminary injunction should issue. The court will sign a decree in accordance with this opinion, restraining the police authorities from interfering with the plaintiff in the lawful conduct of its business.

Decree.

And now, to wit, June 24, 1929, this cause having come on to be heard on bill, answer and proofs, on motion for preliminary injunction, and having been argued by counsel, thereupon, on consideration thereof, it is ordered, adjudged and decreed that Harry A. Mackey, Mayor of the City of Philadelphia; Lemuel B. Schofield, Director of Public Safety for the City of Philadelphia; and William B. Mills, Superintendent of Police for the City of Philadelphia, their agents, employees, subordinates, and all other persons acting under their authority or for them, be and they are hereby restrained and enjoined from preventing the complainant from carrying on its lawful business in a lawful manner or from in any way interfering with plaintiff in the lawful conduct of plaintiff’s business and from seizing the product of plaintiff known as Malt Tonic, made in accordance with its Federal permit, while same is being conducted lawfully from plaintiff’s plant to its customers.

Bond to be entered in the sum of $5000.


author: Knight, J.,

text:
    Commonwealth v. McGowan.

      3. Stroud Weber, for Commonwealth; Robert T. Potts, for defendant.
    Dec. 10, 1928.
   Knight, J.,

The defendant stands charged with two offenses against the criminal law. In one bill he is indicted for adultery, in the other with.-statutory rape, a felony. On the first bill he pleaded guilty; on the second nolo contendere. The question before us is whether we can accept this latter plea. Under the common law rule a plea of noio contendere could only be accepted in cases of misdemeanor where the punishment was by fine alone: 16 Corpus Juris, § 739, page 405. In Pennsylvania, however, the rule has been extended and the plea has been accepted in offenses punishable with fine and imprisonment: Com. v. Holstine, 132 Pa. 357; Com. v. Ferguson, 44 Pa. Superior Ct. 626.

It will be noted, however, that in both of these cases the indictments charged misdemeanors, and with one exception we have been unable to find any case in which the plea of nolo contendere was accepted in a case where a felony was charged.

The exception noted above is mentioned in the case of Buck v. Com., 107 Pa. 486. In this case, Buck was indicted as accessory in the crime of robbery and the report recites that the principals to the robbery entered a plea of nolo contendere. The propriety of the plea was not before the court, and we cite the case solely because it is the only one we have been able to find in which a reference is made to a plea of nolo contendere to a felony charge.

In Com. v. Shrope, 264 Pa. 246, the defendant was indicted for murder and pleaded nolo contendere, which plea the court accepted and treated as a conviction by confession under the Act of March 31, 1860, P. L. 382, and proceeded to determine the degree of guilt of the defendant. The Supreme Court reversed, holding that the plea of nolo contendere is never allowable in capital cases. Mr. Justice Stewart, who wrote the opinion, discussed at some length the plea of nolo contendere, and while he was careful to state that the court were then deciding nothing with respect to its use, except that it is not a plea allowable in a capital case, still he casts considerable doubt as to its propriety in any case of felony. The Justice quotes from the case of Tucker v. United States, 41 L. R. A. (N. S.) 70 [196 Fed. Repr. 260], as follows:

“The allowance of the ‘implied confession’ as a nolo contendere plea, thus defined to be the defendant’s yielding to mercy in the punishment, ‘and desiring to submit to a small fine,’ necessarily implies, as we believe, that the case for such allowance must be within the class of misdemeanors for which punishment may be imposed by fine alone, although the offense may as well be punished by imprisonment, at the discretion of the court, either as an alternative of fine or in addition thereto or to enforce payment of the fine. That such desire (or request, express or implied) on the part of the accused ‘to submit to a small fine’ can neither serve to limit -the fine to the minimum prescribed for the offense, nor constitute the measure of fine which may be imposed within the exercise of judicial discretion — that ‘a small fine’ is thus mentioned in the rule as a relative term, intending substantially less than the maximum — we have no doubt. This provision, however, for such purpose in the submission, as the object sought by the defendant in electing to submit without contest, requires construction of the rule accordingly, as limited to cases consistent with the purpose thus declared. So defined, the rule affords no ground for entertaining the plea, either in cases of felony, requiring infamous punishment to be imposed on conviction, or in cases of misdemeanor, for which the punishment must be imprisonment for any term, with or without a fine. Constrained to this interpretation of the narrow purpose and use of the plea at common law, by the express provisions of the rule thus handed down, we believe extension of the allowance to include even misdemeanors for which imprisonment must be imposed is unauthorized — however desirable it may seem — without statutory provision therefor.”

Later in his opinion, Justice Stewart says: “Certainly there can be no reason for extending its applicability to the higher crimes, and it may well be doubted at this day, in view of the significance given it by our own adjudications, when used within narrow limits, whether, even as to these, it has longer any proper purpose to serve; for if as to these it be the equivalent of a plea of guilty, as said in several of our cases where misdemeanors were charged, the distinction between the two is a distinction without a difference and not worth preserving.”

This court has held in the case of Com. v. Albert Mang, Joseph McKeever and Matthew Gregory, No. 13, June Term, 1927, that a plea of nolo contendere is not allowable to an indictment for a felony.

In the absence of any appellate court authority to the contrary, we see no reason for changing the views we held in the above ease.

And now, Dec. 10, 1928, the court refuses to accept the plea of nolo contendere to the charge of statutory rape and directs that the defendant enter a plea of guilty or not guilty to the indictment charging him with that offense.

Prom Aaron S. Swartz, Jr„ Norristown, Pa.


author: Iobst, J.,

text:
    Beittle v. Maco.

      Dillinger & Schneller, for plaintiff.

      Linn H. Schantz, for defendant and motion.
    June 4, 1928.
   Iobst, J.,

This is an action in trespass. At the trial, the plaintiff recovered a verdict in the sum of $1200. The matter is now before the court on defendant’s motion for a new trial. The only reasons for new trial are: First, that the court erred in permitting plaintiff’s witness, Dr. W. L. Estes, to testify from, and refer to, the records of St. Luke’s Hospital which had not been properly proven or identified; and, second, in permitting Dr. Estes to testify from, and referring to, X-ray pictures taken from the files of St. Luke’s Hospital which had not been properly proven and identified. The only objection we find on the record as to this evidence was in reference to the use of the X-ray pictures by the doctor to refresh his memory regarding the fracture of the bone in the leg. The doctor testified that an X-ray picture of the limb was taken, that he set the fracture on the day following plaintiff’s admission to the hospital, that he used the X-ray picture referred to for the purpose of setting the fracture; that the X-ray picture is an exact picture of the limb as he found it when setting it, and that the pictures are a part of the records of the hospital. The doctor also testified that he treated the plaintiff up to the time of his discharge from the institution.

This evidence was competent, and the witness was properly permitted to use the X-ray pictures for the purpose of refreshing his memory. “It has long been a rule of evidence that a witness may refresh his memory by an examination of memoranda reasonably contemporaneous with the transaction to which it relates, whether made by the witness or another. . . . He must know of the circumstances of which the memoranda make record at or about the time of their occurrence, and that the writing correctly records them. . . . Witness may have seen a paper that recorded facts then fresh in his mind and which, as there stated, were correct; or a witness, from, the inspection of a paper, may have brought before him a reproduction of the circumstances in connection with the particular inquiry. . . . The witness should be certain, either from his present recollection as to past events that the memoranda was accurate, or when the writing was made it was accurate, that is, it correctly recorded the events under investigation. . . . The witness must have had some knowledge of the events at the time they took place, and he must be certain that the writing correctly recites those events.” Com. v. Roth, 71 Pa. Superior Ct. 71, 73. See, also, Com. v. Dwyer, 79 Pa. Superior Ct. 485, 490: “That the paper was not written by the witness himself is, therefore, no fault in it. The witness may or may not, in a given instance, with propriety make use of it; but the aid may equally be a legitimate one, even though another person prepared the writing.” 2 Wigmore on Evidence, § 759, citing Henry v. Lee, 2 Chitty, 124: “If, upon looking at any document, he can so far refresh his Inemory as to recollect a circumstance, it is sufficient; and it makes no difference that the memorandum is not written by himself, for it is not the memorandum that is the evidence but the recollection of the witness.”

The motion for a new trial is, therefore, denied.

Decree. — Now, June 4,1928, defendant’s motion for a new trial is dismissed.

From Edwin L. Kohler, Allentown, Pa.


author: Shanaman, J.,

text:
    Swineheart v. Hertzog et al.

      W. B. Freed, for defendant and rule; Darlington Hoopes, contra.
    Feb. 8, 1929.
   Shanaman, J.,

Plaintiff sued defendants for damages suffered in an automobile collision and obtained a verdict. The defendants consisted of an actual driver and the executors of his father’s estate, as the plaintiff charged that the defendant driver was representing his father at the time of the accident. The defendants have taken rules for judgment n. o. v. and for a new trial.

Plaintiff was driving a Moon touring-car in a northerly direction along the State highway leading from Boyertown to Bally. Defendant was driving an Overland touring-ear in a westerly direction along the Barto Road, which runs into the said highway. At the intersection, the Barto Road divides into a fork, i. e., into two roadways, one of which turns southerly into, and the other northerly into, the State highway. The two termini of the Barto Road thus created are about 150 feet apart. Defendant followed the southerly fork. At the same time that plaintiff reached the intersection of the State highway and the southern fork of the Barto Road, the defendant, by plaintiff’s own testimony, was coming from plaintiff’s right toward the intersection, and was from four to six feet from it. Both cars continued and collided.

Plaintiff testified that he was driving on the right side of the highway, and that he immediately applied his brakes on seeing defendant, but that defendant did not seem to slow up at all, but shot right at him without any decrease of speed, and hit him with enough force to drive him across the road and smash his car against a telegraph pole, badly injuring both sides of plaintiff’s car. Plaintiff testified that he had used the road at this point perhaps eight times during the previous two months, and had also used the road at that point on a few occasions during the previous three or four years. Being asked, “You knew that there was an intersection below there?” plaintiff replied, “I did not. I knew there were two roads coming out, but I didn’t know it was at that place.” (Notes of testimony, page 10.) Plaintiff testified that he could not see the intersection because of a high bank covered with brush at the point. He said, “I might have noticed it previously (the intersection), but made no mental recollection.” (Notes, page 10.) He testified further that his car was running from one to two feet to the right of the median white line of the State highway until he saw the defendant, when he swerved slightly to the left to avoid defendant, and that he did not, and could not, see defendant before plaintiff was right at the intersection. Plaintiff admitted that you might possibly see the intersecting road several hundred feet back from the intersection in the direction from which plaintiff was coming. (Notes, page 15.) He said that he did know of the farther branch or northern fork of the Barto Road, but had “never noticed the left branch (southern).” (Notes, page 17.) He said, “I didn’t know there was a triangle until after the accident.” (Notes, page 17.) Plaintiff also said that the Barto Road — that is, the fork on which defendant came and which plaintiff had never noticed before — appeared to him to be “just slightly wider than the macadam of the State highway” (Notes, page 17), which he said was 18 feet wide. (Notes, page 3.) His witness, Morrison, testified that the southern fork of the Barto Road was approximately 14 feet wide, from 12 to 14 feet. (Notes, page 46.) Plaintiff’s witness, Wayman, placed defendant’s car a half a car’s length from the macadam when the plaintiff’s car was half on the intersection. There are three feet of gravel on each side of the macadam of the State highway. (Notes, page 46.) Plaintiff also testified that defendant could have, in his opinion, avoided the collision by turning sharp left. (Notes, page 48.) Such was the plaintiff’s testimony.

Defendant admitted that he was familiar with the intersection, and said he could not see more than 50 feet up the State highway to the left when he reached the intersection. The testimony quoted hereinabove would justify an inference that the defendant did not approach the intersection and drive his car with the care, skill and control which a reasonably careful driver should have exercised under the circumstances and conditions. Nor does the case show such contributory negligence on plaintiff’s part as could, in our opinion, be determined, as a matter of law, against him. Defendant has not pressed his objection to the sufficiency of the proof of agency in the case as to the representation by the defendant driver of his father. Defendant’s rule for judgment n. o. v. must, therefore, be dismissed. We are, however, of opinion that the case ought to be retried.

The two cars approached the intersection at substantially the same time. Plaintiff was four to six feet ahead of defendant. Defendant came from the right, and in this case he had the right of way. It is not a matter of feet or inches. If plaintiff cannot reasonably expect to get across without a collision in the event that defendant keeps coming on at a reasonable rate of speed, plaintiff must halt and wait for the car coming from the right to pass, even though the plaintiff’s front wheels may have reached the intersection a brief moment before the defendant’s front wheels. Such is the rule of the road: Alperdt v. Paige, 292 Pa. 1. It may be true that plaintiff could not see the defendant’s car until he reached the intersection, but the plaintiff’s own testimony is quite convincing that he knew, or should have known, of the intersection and of the fact that it was concealed and dangerous. He had crossed it perhaps eight times within the two months prior to the accident and also upon some occasions before that. He knew of it, and said he knew of it, but said that he knew only of the one fork, the farther one, and had never noticed the other, and that he had never noticed the triangle 150 feet long between the two forks. This in face of the fact that he had traveled both ways along the road over the intersection and in face of the fact that the fork up which the defendant came is from 12 to 14 feet wide and was stated by plaintiff to appear to him to be as wide as the macadam of the State highway. The road was plainly visible to one passing by it, as appears' both from the testimony and from the photographs admitted in evidence. It is quite important to note that plaintiff, in explaining his ignorance of the intersection, said (Notes, page 10) : “I knew there were two roads coming out, but I didn’t know it was at that place.” But, at page 17 of the notes of testimony, he said: “I noticed the road that went out to the right, yes, sir;” and, being asked whether he had seen the fork up which defendant came, he said: “No, sir, I did not;” and, being asked whether he had never seen it, he said: “No, sir.” At that point he also said, “I knew the right branch went in, yes, sir;” and, being asked whether he had ever noticed the left branch, he again said: “No, sir, I didn’t know there was a triangle until after the accident.” This self-contradiction easts a most dubious light on plaintiff’s explanation of the accident. Furthermore, it is indeed difficult to conceive that he, as a driver, never marked that danger and did not know of that road. It seems quite impossible to conclude that he should not reasonably have known of it upon his own testimony.

Defendant testified that he looked both ways at the intersection and saw no one and proceeded as far as the middle of the State highway, when he saw plaintiff’s car coming very fast from defendant’s left, that defendant sounded his horn and the cars collided, that defendant first saw plaintiff when plaintiff was about 90 feet away, and that defendant was traveling about 15 miles an hour up the Barto fork, which is, as he testified, a steep grade. Defendant’s witness, Walters, apparently impartial, testified (Notes, pages 63, 64) that plaintiff began to apply his brakes 75 feet from the intersection and kept them on all the way down to the accident, his car gradually working over from the right side of the road, where he had been driving, up till the point of the collision, when the plaintiff’s car had got all the way over on the left side of the highway, and that this passage, 75 feet long, left a plain skid-mark of equal length. This testimony, if believed, is very important, as contradicting plaintiff’s theory of the accident, and furnishing an explanation for the plaintiff’s car being lodged against the telegraph pole, other than the plaintiff’s explanation, which was that the speed of defendant’s car was so great as to force plaintiff clear across one-half of the macadam, or nine feet, and across the three feet of gravel to the left of it. Defendant’s witness, Fronheiser, said plaintiff was going 40 miles an hour, that she heard the brakes screeching as plaintiff passed her house 75 feet from the intersection, and saw the marks where his wheels started to cross the white line about 75 feet from the intersection. Defendant’s witness, Clyde Fronheiser, saw the skid-marks, which he said started in front of Ralph Fronheiser’s house, placed 75 feet away. Defendant’s witness, Mrs. Fronheiser, was contradicted by a statement she had made on the point of skid-marks, but was not contradicted as to her testimony that she heard the plaintiff’s brakes go on, and screech, when he was in front of her house, 75 feet from the accident.

It appears that both plaintiff and defendant approached an intersection which they knew, or should have known, was dangerous; that they approached at the same time, and that the defendant approached from plaintiff’s right. The defendant, having the right of way, and the plaintiff, not having the right of way, were, nevertheless, both under an equal duty to exercise all the caution which such a dangerous intersection demands. If the testimony sustains an inference of defendant’s negligence, it, with equal force, convinces of plaintiff’s negligence. Moreover, the verdict for plaintiff necessarily involves a disbelief of the testimony of defendant’s witnesses as to the skid-marks, beginning 75 feet from the accident and continuing thereto, and of their testimony as to the screeching of the brakes of plaintiff’s car 75 feet from the intersection, and the gradual passage of the plaintiff’s car, driven by plaintiff, from the right side of the highway, at a point 75 feet from the accident, completely over to the left side, just prior to the collision. This testimony was uncontradicted, except by the written statement of one of the witnesses, as to the matter of skid-marks.

“While the ascertainment of the underlying facts and the drawing of the inferences and final conclusions therefrom are for the jury, even where strong conflicting oral evidence is produced by a defendant, yet, in every such instance, a grave responsibility rests upon the trial judge to see to it that no verdict contrary to the weight of. the evidence or shocking to judicial conscience is allowed to stand, no matter how many new trials must be granted in order to effect the ends of justice; and this will always be so until the fundamental law, which ordains that trial by jury shall be as heretofore, is changed to give greater power, in the realm of fact, to the judiciary:” Maloy v. Rosenbaum Co., 260 Pa. 466, 472. A mere judicial disagreement with a verdict, even on strong grounds, does not warrant a retrial. Where, however, a successful plaintiff has denied knowledge of a dangerous intersection, and his own testimony indicates clearly that he should have known of it, and must have known of it, unless he were indeed too careless to note it, and indicates further, by his own self-contradictions, that he probably did know of it, and where the testimony of disinterested witnesses is that the accident occurred in the way that defendant alleges, and not in the way that plaintiff contends, and there is little or no contradiction of the physical facts recited in their testimony, a strong, persisting conviction may be created in the mind of the court that the plaintiff was himself guilty of contributory negligence, and a similar doubt as to the validity of his explanations arises in the judicial mind. When such conviction has not been shaken, and such doubt has not been resolved by a most careful study of the testimony, with a view to upholding the verdict, if possible, the court should, if it feels that justice demands it, grant a retrial. We are of opinion that the present is such a case.

And now, to wit, Feb. 8, 1929', rule for judgment' n. o. v. discharged, and rule for new trial made absolute.

Prom Charles K. Derr, Reading, Pa.


author: Fleming, P. J.,

text:
    Marion Township Poor Dist. v. Howard Borough Poor Dist.

      N. B. Spangler and Ivan Walker, for Marion Township Poor District.

      J. K. Johnston, for Howard Borough Poor District.
    Jan. 30, 1929.
   Fleming, P. J.,

This is a proceeding under the 2nd section of the Act of April 6, 1905, P. L. 112, wherein the defendant poor district has been cited to show cause why an order of removal, in the matter of one Elizabeth Orndorf, should not issue as provided by said act. We note that the statute requires twenty days’ notice of hearing to be given, whereas the record herein shows that an interval of but twelve days elapsed between the presentation of the petition and the acceptance of service and waiver of issuance of the citation by counsel for the defendant poor district. However, as all parties have appeared and hearing has been had, the defect noted is deemed to have been waived, and we shall proceed to a final disposition of the matter upon its merits.

From the testimony adduced we find the following

Facts.

1. Elizabeth Orndorf is a single woman above the age of twenty-one years, and without child.

2. Prior to the death of her mother in 1922, the said Elizabeth Orndorf resided in the village of Jacksonville, Marion Township, Centre County, Pennsylvania.

3. That subsequent to the death of her mother in 1922, the said Elizabeth Orndorf spent the following periods within the limits of the Poor District of the Borough of Howard, viz.: (a) From Aug. 11, 1922, to Sept. 5, 1922, 25 days; (b) from Oct. 30, 1922, to May 30, 1923, 212 days; (c) from June 12, 1923, to Sept. 11, 1923, 101 days; (d) from Sept. 21, 1923, to June 28, 1924, 281 days; (e) from Nov. 11, 1924, to May 15, 1925, 185 days; (f) from June 13, 1925, to Sept. 11, 1926, 1 year and 90 days; (g) from Oct. 30, 1926, to May 10, 1928, 2 years and 193 days.

4. That the persons or places with whom and where the said Elizabeth Orndorf resided during her respective stays in the Poor District of the Borough of Howard were, respectively, as follows: (a) With her aunt, Mrs. Lucas, and her brother, William Orndorf; (b) with her aunt, Mrs. Lucas, and her brother, William Orndorf; (c) with her aunt, Mrs. Lucas, and her brother, William Orndorf; (d) with her brother, William Orndorf; (e) with her brother, William Orndorf; (f) with her brother, William Orndorf; (g) with her brother, William Orndorf.

5. That the said Elizabeth Orndorf executed no public office in the Poor District of the Borough of Howard at any time.

6. That the said Elizabeth Orndorf was not assessed nor did she pay any public taxes or levies at any time within the Poor District of the Borough of Howard.

7. That the said Elizabeth Orndorf at no time took a lease of real estate of any sort within the said Poor District of the Borough of Howard.

8. That the said Elizabeth Orndorf at no time became seized of any freehold estate within the said Poor District of the Borough of Howard.

9. That the said Elizabeth Orndorf at no time became lawfully bound or hired as a servant within the said Poor District of the Borough of Howard.

10. That the said Elizabeth Orndorf, jointly with her brother, William Orndorf, is seized of real estate within the said Poor District of the Township of Marion.,

11. That the contents of the home within the Poor District of the Township of Marion, owned jointly by the said Elizabeth Orndorf and William Orndorf, her brother, wherein the said Elizabeth Orndorf resided with her mother prior to the death of said mother, are intact and unchanged in any way.

12. That an order of relief was sworn out by Dr. W. J. Kurtz, of Howard, Pa., before A. A. Pletcher, Esq., and George W. Eaton, Esq., two of the justices of the peace for Centre County, on May 2, 1928.

13. That said order of relief was duly served upon J. A. Bartley and Willard C. Harter, Overseers of the Poor for the Township of Marion.

14. That the said Elizabeth Orndorf was delivered by the Poor District of the Borough of Howard to J. A. Bartley, one of the Overseers of the Poor for the Township of Marion, on May 10, 1928.

15. That the Poor District of the Borough of Howard has paid to the Poor District of the Township of Marion the sum of $60, being for the maintenance and support of the said Elizabeth Orndorf for’the period beginning May 10, 1928, and ending Sept. 10, 1928, a period of four months, at $15 per month.

16. That no payments have been made by the said Poor District of the Borough of Howard for or on account of the maintenance and support of the said Elizabeth Orndorf since Sept. 10, 1928.

Discussion.

The question for determination is the settlement of Elizabeth Orndorf. That she was, prior to the death of her mother, properly and legally settled in the Poor District of the Township of Marion cannot be questioned. Has she, therefore, since the date of her mother’s death, become legally settled elsewhere? If the answer should be affirmative, there can be no question but that her place of settlement would be in the Poor District of the Borough of Howard, for she has dwelled nowhere except within the two poor districts which are the parties to this proceeding.

It is our opinion, however, that she has not lost her legal settlement in Marion Township and that the poor district of that township is liable for her maintenance and care. In view of our findings 5, 6, 7, 8 and 9, it cannot be held that she became legally settled in the Poor District of the Borough of Howard, under any of the provisions of the Act of May 1, 1909, § 3, P. L. 307. The remaining question is, therefore, did she acquire a settlement in the defendant poor district by virtue of the provisions of the Act of April 6, 1905, § 1, P. L. 112, which provides: “A settlement may be gained in any poor district by any person, married or single, who bona fide comes to inhabit therein and continues to reside therein for one year. Persons born in a place, whether legitimate or illegitimate, shall be deemed to be settled there, unless the parent having their custody be settled elsewhere; and all children shall follow the settlement of the parent or parents, stepfather or stepmother, having their custody until the age of sixteen years.”

It is quite true that Miss Orndorf, on two occasions since the death of her mother, was absent from the plaintiff poor district and was resident in the defendant poor district for periods in excess of one year. Did she bona fide come to inhabit therein, and especially during the most recent period? Miss Orndorf answers this question most satisfactorily on page 7 of the notes of testimony, viz.: “Q. Do you or do you not have a home furnished in Jacksonville? A. Yes. Q. State whether or not you also moved over to Howard? A. No; I never moved there. I never had any furniture or a trunk at Howard, only some clothing. Q. Did you ever go there with 'the intention of making that your home? A. No; my aunt promised to keep my home in Jacksonville. Q. You have considered Jacksonville as your home? A. Yes, I looked at it as my home.”

“It has often been decided in the construction of statutes relating to the settlement of paupers that residence includes something more than mere physical presence. There must be on the part of the pauper the settled intention of choosing his place of residence with the object of making it his home:” 21 Ruling Case Law, page 717, par. 20, citing, inter alia, Heidleberg v. Lynn, 5 Whart. 430.

From the lips of Miss Orndorf we find that she had no intention of making Howard Borough her home. With the death of her mother, she most naturally interested herself in her closest relatives, her brother and her aunt. Howard was but a few miles away, and her extended visits there do not in themselves affect her proper settlement in the plaintiff district. See Noyes Township Poor District v. Chapman Township Poor District, 21 Dist. R. 667; Westmoreland County Poor District’s Appeal, 77 Pa. Superior Ct. 402. We, therefore, reach the following conclusions of

Law.

1. That the said Elizabeth Orndorf had no legal settlement in the Poor District of the Borough of Howard.

2. That the said Elizabeth Orndorf is properly and legally settled in the Poor District of the Township of Marion.

3. That the order of removal herein requested should be refused and that the Poor District of the Township of Marion should be requested to keep and’ care for the said Elizabeth Orndorf as a charge upon the said poor district.

4. That the costs of the case and charges properly allowable be paid by the Poor District of the Township of Marion.

We, therefore, enter the following

Decree.

And now, Jan. 30, 1929, after a full hearing and due consideration, citation is discharged and it is adjudged that the Poor District of the Township of Marion, County of Centre and State of Pennsylvania, is the last place of legal settlement of Elizabeth Orndorf, who was regularly and legally adjudged, and is hereby so adjudged, a poor person in need of relief, and was so at the time the order of relief aforesaid was issued and delivered into the hands of the Overseers of the Poor of the Poor District of the Township of Marion; and it is further ordered that the Poor District of the Township of Marion pay to the Poor District of the Borough of Howard the sum of $60, being the amount expended by it for the relief of the said Elizabeth Orndorf from May 10, 1928, to Sept. 10, 1928, and shall pay also the costs of these proceedings.

Prom S. D. Gettig, Bellefonte, Pa.


author: Chase, P. J.,

text:
    Gann v. Bloom.

      N. F. V/omer, for plaintiff; Lisle D. McCall, for defendant.
    Jan. 18, 1929.
   Chase, P. J.,

At the conclusion of the trial of this case, the defendant asked for binding instructions for the defendant, which being refused by the court and the jury having found verdict for the plaintiff herein, this motion was made.

This issue first came before the court on rule to show cause why judgment should not be opened, at which time the court reviewed the petition and answer and filed an opinion, setting forth the law as viewed by the court in arriving at the conclusion that the facts alleged are such as raised an issue which should be passed upon by a jury. That opinion was filed to the above number and term on Oct. 16, 1928, and is made a part of the opinion as filed in this motion, the issues therein raised and disposed of in that motion being in a great measure applicable to the disposition of this motion.

The facts surrounding this case, in substance, are that the defendants and the petitioners in this motion are man and wife. The plaintiff, G. W. Gann, is a surgeon and physician in the City of Du Bois. For a considerable period of time, Dr. Gann was the family physician of the defendants, during which time he treated various members of the family, the children, the wife and the husband. The evidence discloses that the charges were made against J. G. Bloom, the husband, for the services rendered and that this account on July 28, 1926, amounted to $371.49. It further appears that some effort was made on the part of Dr. Gann to secure the payment of this book account charged to J. G. Bloom; that on the above date the defendants, J. G. Bloom and his wife, Isaylia E. Bloom, came to the office of the plaintiff and at that time gave a judgment note — the note in question — which note was dated July 28, 1926, made payable to Dr. Gann for the sum of $371.40. This note was signed as makers, as appears on the face of the note as follows: Mrs. Isaylia E. Bloom (Seal), J. G. Bloom (Seal). At that time Dr. Gann gave to J. G. Bloom a receipt in full for the book account, which receipt reads as follows: “July 28, 1926. Received of J. G. Bloom, Three hundred seventy one and 40/100 Dollars, in full'to date. (Signed) G. W. Gann.” (See defendant’s Exhibit “B.”)

The plaintiff in the issue raised contended that the act of Isaylia E. Bloom was considered and was a payment of this book account, while, on the other hand, it is contended by the defendants that the legal effect of the acts and conduct of Isaylia E. Bloom was to make her a surety for her husband for the payment of his debts.

It is admitted by all parties concerned that a wife may pay the debts of her husband and may borrow money to do so, and if she does that she is legally bound for her obligation. It is also understood by the parties in interest that a wife cannot become an accommodation maker or endorser or surety for the debts of another: The defendant earnestly contends that under the facts in this case it is apparent that Mrs. Bloom was nothing more than an accommodation maker in the case.

A careful review of the cases at the time on the motion to open up the judgment convinced the court that the circumstances were such that the court could not say as a matter of law whether the act of the said wife was as an accommodation maker or whether under the law it was a payment of her husband’s debts, and the only possible way to determine under the law in which class this conduct fell was to submit the issue to the jury under the evidence.

At the trial of the cause, the court permitted all testimony introduced tending to show the circumstances, the conditions and opinions of the parties interested for the jury’s consideration in determining the single issue raised. An examination of the charge of the court clearly indicates that the court carefully reviewed the law and cautioned the jury that if the conduct as indicated by the evidence in the cause in any way demonstrated that there was an attempt, either by agreement between the parties or by acts of the plaintiff, to circumvent the law as to the prohibition of a married woman’s becoming accommodation maker, that if the evidence disclosed that there was any attempt to take advantage of Isaylia E. Bloom, and they did not find that this was a payment of the debt of the husband by the wife, their verdict should be for the defendants. The court also called the jury’s attention to the fact that this prohibition forbidding the attempt on the part of married women to become surety, endorser or accommodation maker is on the books for the protection of married women, and the law will scrutinize very carefully to determine whether the conduct and acts are such as to indicate an attempted evasion on the part of individuals, and even though the attempt was with the consent and active efforts on the part of the married woman, the jury should find that the transaction was an accommodation transaction.

The court has not changed its mind as to the conclusion that this was a matter for the jury, and whether the court would have found as the jury found is not material. The evidence before the jury (page 9) discloses that the account was carried by J. G. Bloom; that a receipt in full for the book account was given when this note transaction took place. On page 21 of the testimony, Mr. J. G. Bloom, the defendant, testified, in answer to this question: “Q. That paid the bill and you got a receipt for the bill in full? A. Yes.” On page 27 of the testimony, Mrs. Isaylia E. Bloom, the wife, testified, in answer to this question: “Q. It was thoroughly understood between you and your husband and Dr. Gann on July 28, 1926, that that note was given, that the note paid the account, and Mr. Bloom was given a receipt in full for the account. Is that right? A. Yes, sir.” It seems to the court that in the teeth of this testimony the court would not be justified in saying that there was not evidence which justified the jury, in addition to the rest of the testimony in this case, to find the verdict that was arrived at.

Now, Jan. 18,1929, motion for judgment n. o. v. overruled, exceptions noted and bill sealed to the defendant. Costs to follow verdict. Judgment to be entered upon the verdict upon payment of the jury fee.

From John M. Urey, Clearfield, Pa.


author: VanDusen, J.,

text:
    Linnard’s Estate.

      Frederick J. Shoyer, for petitioner; A. H. Wintersteen, for accountant.
    July 12, 1929.
   VanDusen, J.,

This is a petition for review, to which an answer has been filed raising questions of law.

The petitioner, with the trust company, respondent, was an executor under her husband’s will. She was also testamentary guardian of the estates of her two minor children, the remaindermen. Respondent was sole trustee, the terms of the trust being to pay the income to petitioner for life, with remainder to her children.

In 1921 petitioner and respondent, as executors, filed their first and final account, and by the adjudication now sought to be reviewed, the balance, $194,447.50, “composed as in the account stated,” was awarded to the respondent as trustee for the uses and purposes contained in the will. The account clearly indicated the securities which formed part of the balance awarded, by the adjudication.

In 1929, upon an account by the respondent, as trustee, the petitioner, as life-tenant, sought to surcharge the trustee in a sum equivalent to the amount of alleged shrinkage in value of the securities so accounted for, which shrinkage had taken place during the administration of the estate by the executors. The Auditing Judge very properly declined to hear testimony relating to the surcharge of the trustee at a time when it was acting solely as executor and to disturb the awards of the Auditing Judge. The present bill for review seeks to raise these questions.

Petitioner, in order to avoid liability for any laches upon her own part, avers in the petition: (1) That she was a non-resident; (2) that she had no knowledge or experience in the administration of decedents’ estates, of the value of securities, or of the law as to the duties of executors; (3) that the respondent, co-executor, took possession of all the securities and exclusively administered the settlement of the estate; (4) that while she signed the account, it was prepared by the respondent and forwarded to her for execution; (5) that she had no notice of the audit; (6) that the attorney for the co-executors certified that notice to all of the parties had been given in New York; (7) that she had no independent counsel and never consulted or conferred with the co-counsel.

The claim of petitioner is based upon the liability on the part of her co-executor upon its failure to dispose of certain of the securities coming into its hands from the decedent, irrespective of the authority of retention conferred by the .terms of the will.

The parties still remain the same, the trustee still holds the securities, and under the authority of Willing’s Estate, 288 Pa. 337, petitioner claims that she is entitled to relief on the ground that justice and equity require it, and that no one will suffer thereby.

We are not convinced of the merit of her contention.

While the Orphans’ Court, in addition to the provisions of the Fiduciaries Act, has the discretion, under its general equity powers, to permit a review, irrespective of the lapse of time, where the fund remains within its control and no rights of third parties have intervened (Given’s Estate, 292 Pa. 483, 484), yet the court is not compelled to grant a review in every ease. It is a matter of justice and equity, and the court will not exercise such discretion, except upon presentation of facts which warrant the relief sought: Braum’s Estate, 90 Pa. Superior Ct. 448, 451.

It is axiomatic that ignorance of the law does not excuse. If the petitioner was ignorant and incompetent, as she alleged, she should not have undertaken the administration of this estate. She had the benefit of counsel. If she did not avail herself of his advice, she ought not now to complain. She signed the account, which plainly disclosed the retention of all the securities concerning which she now objects. All of the information was plainly before her. While acting as co-executrix she had an equal voice concerning the disposition with her co-executor of the securities in question. As life-tenant and as testamentary guardian of her minor children, she had full opportunity, as well as the duty, to raise all questions and to bring all matters before the Auditing Judge for his determination. Not having acted, and having permitted nearly eight years to have elapsed without any proceeding whatsoever being taken, we are of opinion that there is no justice or equity in her position which should move us to grant the relief for which she prays. The petition is dismissed.

Lamorelle, P. J., did not sit.