author: Davis, J.,

text:
    Van Den Beemt v. Pfahler.

      Physicians and surgeons — Malpractice—Negligence—Burden of proof.

    1. A physician or surgeon who has given a patient the benefit of his best judgment is not liable for negligence, even if his judgment was erroneous, unless the error was so gross as to be inconsistent with reasonable and ordinary skill and care.
    2. In an action for malpractice by a patient against a physician or surgeon, the burden of proof is on the plaintiff to show that the defendant did not exercise reasonable care, skill and diligence in his treatment of the case. A jury may not infer negligence from the mere happening of the injury or the subsequent condition of the injured part of the body; no presumption of negligence arises from the fact that defendant failed to effect a cure. ’
    3. A jury may not be permitted to guess at the cause of the injury and find that the negligence of the defendant was the cause, where there were several other causes than the one alleged which might have produced the physical condition complained of by the plaintiff.
    4. The plaintiff, a violinist, having sustained a fracture of the wrist from a fall, on being recommended by a surgeon to have X-Ray treatment administered, employed defendant for that purpose. The X-Ray treatments were administered on or about July 5 and 19, 1918. Plaintiff’s wrist became worse some time afterward, exuding pus and sloughing flesh. He then consulted another physician and was recommended to use scarlet red ointment. He did so, and his wrist became worse. An operation was performed in December, 1919, his wrist became stiff and he was unable to follow his profession. He sued the surgeon who had given the X-Ray treatment on the ground that his whole trouble originated from an X-Ray burn. It appeared in plaintiff’s case that an X-Ray of less than ordinary strength had been administered; that scarlet red ointment applied to a surface already irritated might have produced the condition which rendered the operation necessary; and that for some time after the alleged injury he continued to play the violin: Held, that a compulsory non-suit was properly entered.
    Trespass to recover damages for malpractice. C. P. No. 3, Phila. Co., Dec. T., 1919, No. 4548.
    Remarks of the court upon entering non-suit.

      Claude L. Both and Frank H. Schrenk, for plaintiff.

      William G. Wright, for defendant.
    Oct. 17, 1921.
   Davis, J.,

The plaintiff brings this action to recover damages for permanent injuries sustained, or a condition resulting, as he avers, due to negligence of the defendant in applying X-Ray treatment to his hand, which had been injured some time prior to the treatment by the defendant. It appears that in February, 1918, the plaintiff had sustained a fracture of the bones of the left hand at the wrist, due to a fall; that immediately after the injury the plaintiff was attended by Dr. La Place, a well-known surgeon, who, on or about July 5, 1918, directed the plaintiff to have taken an X-Ray photograph of the injured wrist and X-Ray treatment administered to it. This was done on that date by the defendant. The defendant, on being called by the plaintiff for cross-examination, testified that at the time the plaintiff called at his office the defendant took an X-Ray photograph of the plaintiff’s hand and also gave an X-Ray treatment. Another X-Ray treatment was administered to the plaintiff’s hand by an assistant of the defendant under the direction of the defendant, although 'the defendant was not personally present, on July 19, 1918. The defendant did not again see the plaintiff until April 14, 1919, at which time there was no X-Ray treatment, nor was there any subsequent X-Ray treatment of the plaintiff by the defendant or under his direction. The plaintiff had not been under the observation or care of the defendant from July 27, 1918, until April 14, 1919. It appears that as time went on the injured member became in a very serious condition, exuding pus and the flesh sloughing. After the X-Ray treatment by the defendant, the plaintiff had consulted another physician, Dr. Martin, who suggested the application of an ointment known in the medical profession as scarlet red ointment. Dr. La Place testified, in reference to this ointment, that it is a highly irritating medicine, and because of its irritating properties it does good in individual cases, but that it is dangerous to use it on any part of the body that is at all delicate; that it is “much more dangerous to apply on places that are already extra sensitive, as that place was at that time, so there is more than a likelihood that this second breaking down was due to the red ointment- — there is more than a liklihood — I cannot swear to it, of course, but there is more than a likelihood that this irritating stuff on that made the already delicate surface of the hand break down.” Dr. La Place testified that he met the plaintiff on the street in December, 1919, and then discovered that the plaintiff had been using the scarlet red ointment. He requested the plaintiff to call at his office, and, after consultation with Dr. John Chalmers Da Costa, a well-known surgeon of this city, an operation was performed by Dr. La Place, who cut away certain portions of the flesh which had sloughed; and it appears that some of the tendons were involved and disappeared by dissolution or decay. The plaintiff’s hand is now in the condition of being stiff, and he is now incapacitated from following his occupation as a violinist.

Dr. Pfahler, the defendant, testified that the dose administered at both the X-Ray treatments was not a full erythema dose, as it is called, by which is meant, according to the testimony of the defendant, an application which will produce redness of the skin, but that it was three-quarters of an erythema dose, and that if there was an X-Ray burn upon the plaintiff’s hand, which he did not admit, it was due to the fact that the plaintiff had what is known in the medical profession as an idiosyncracy, which the court understands to mean a super-sensitiveness to heat or liability to burning. Dr. Pfahler further testified that he had inspected the apparatus by which the X-Rays are produced; that it was in good condition, and that the dose as given by his assistant was also three-quarters of an erythema dose.

In my opinion, the plaintiff has failed to show that the condition of his wrist and hand was due to any negligence on the part of the defendant in applying the X-Ray treatment, either on July 5, 1918, or on July 19, 1918. Dr. Da Costa testified that he saw the plaintiff in March, 1920; that the plaintiff then had a raw spot on his hand, the result of sloughing, which could have been caused by an injury, and pus formation.

The plaintiff predicates his right to recover upon the assumption that there was an X-Ray burn, and that that X-Ray burn was due to the negligence of the defendant in the application of the X-Ray. In an action against a physician for malpractice, no presumption of negligence can arise from the fact that the defendant failed to effect a cure. The burden of proof in such a case is upon the plaintiff to show that the defendant did not exercise reasonable care, skill and diligence in his treatment of the case. The defendant cannot be held liable in this case for the present condition of the plaintiff’s injured hand upon a mere presumption that there was an X-Ray burn. The burden is on the plaintiff to prove that fact; and I am of opinion that he has failed to show that there was an X-Ray burn. He has failed to show that the defendant did not exercise reasonable care, skill and diligence in his treatment of the case. There is no evidence whatever that the X-Ray treatment applied by the defendant was an improper treatment or that it was not skillfully performed, or that there was an overdose of electric current or any other element which may cause an X-Ray burn. The law in this State has not gone so far, in cases of this character or other actions to recover damages for negligence, as to permit a jury to infer negligence from the mere happening of an injury or the subsequent condition of an injured part of the body. The fact that the injured limb is defective after treatment is not evidence of negligence. Where a physician exercises ordinary skill in keeping with approved methods, he is not liable for a mistake of judgment, even if such mistake of judgment could be deduced from the testimony in this case, and there is no evidence whatever that the defendant erred in his judgment or was negligent in his method of treatment. It has been held that a surgeon or doctor is not an insurer of his patients. He only undertakes to employ such skill and diligence as are ordinarily exercised in his profession, and in judging of the degree of skill regard is to be had to the advanced state of the profession at the time. There is no evidence that the defendant was not a proficient practitioner of the particular methods used in this ease at the time of its application to the plaintiff. A physician who has given a patient the benefit of his best judgment is not liable for negligence, even if his judgment is erroneous, unless the error is so gross as to be inconsistent with reasonable and ordinary skill and care. Unfortunately for the plaintiff in this case, it appears that there were many intervening conditions, applications and treatments — I am referring to the testimony of Dr. Da Costa and Dr. La Place'— and that many other reasons could be assigned for the condition of the plaintiff’s hand immediately prior to the operation by Dr. La Place in March, 1920, there having been an interval of nearly two years from the last treatment by the defendant until the time of the operation by Dr. La Place. In the meantime, the plaintiff had used medicine and ointments not prescribed by the defendant. There is no evidence that if the plaintiff had not consulted Dr. Pfahler, the defendant, and had not had the X-Ray treatment, his hand would not have been in the condition that it was immediately prior to the operation by Dr. La Place in March, 1920, and the burden was on the plaintiff to show, when he alleges a condition upon which he bases his right to recover, that that condition was due to the negligence of the defendant. The jury may not be permitted to guess at the cause and find that negligence of the defendant was the cause, where there are many other causes than the one alleged that might have produced the same condition. I will say here that it appears from the testimony of the plaintiff that he followed his profession as a violinist with the Philadelphia Orchestra after the injury and after the X-Ray treatments by Dr. Pfahler, the defendant, for a period from October, 1918, until April, 1919. Can we assume, therefore, that there was no irritating condition arising from the employment of his hand in playing the violin under the condition that the hand is said to have been in at that time, or that infection may not have occurred during this period of time, especially as the plaintiff was himself treating his hand by bandaging and putting on ointments?

While I have great sympathy for the plaintiff in the injury that he has sustained, under my view of the law he has failed to show that the present condition of his hand was due to the negligence of the defendant in applying the X-Ray treatment as alleged in the statement of claim. I grant the defendant’s motion for non-suit. See, also, English v. Free, 205 Pa. 624; Wohlert v. Seibert, 23 Pa. Superior Ct. 213; Potter v. Warner, 91 Pa. 362; McGraw v. Kerr, 128 Pac. Repr. 870.

Nov. 30, 1921, motion to take off non-suit overruled.


source: Caselaw Access Project

author: Rogers, J.,

license: Public Domain

text:
    Commonwealth v. Rosier.

      Practice, O. and T. — Murder—Trial—Continuance on ‘petition of counsel averring impossibility of preparing for trial by day fixed.

    Defendant, who had been indicted for murder, was arraigned Feb. 17th and pleaded not guilty; the court fixed Feb. 27th for the trial. On Feb. 23rd her counsel filed his personal petition under oath, averring, inter alia, that there were several witnesses, one in Western Pennsylvania, others outside the jurisdiction, and others Within the jurisdiction whom he had been unable to find, and whom he would have to serve with process and interview, and whose evidence he must consider in preparing the defence, and that it was impossible to do this before the day fixed for trial, and, hence, defendant could not have a fair and just trial if tried on the 27th. The averments in regard to the difficulty of getting in touch with witnesses were not denied by the answer filed by the district attorney: Held, that the case should be continued to a later date.
    Motion for continuance. 0. and T. Phila. Co., Feb. Sess., 1922, Nos. 288, 289, 290 and 291.

      Maurice J. Speiser, Assistant District Attorney, for plaintiff.

      John R. K. Scott, for defendant.
    Feb. 23, 1922.
   Rogers, J.,

This is a motion for a continuance of the above case by way of a petition, personally sworn to by John R. K. Scott, Esq., counsel for the defendant.

The prisoner, now confined in the Philadelphia County Prison, is charged with having shot and killed Oscar Rosier, her husband, and Mildred Reekitt on Jan. 21, 1922. Shortly after the commission of the crime, she was arrested. On Jan. 23, 1922, she was committed by Benjamin F. Renshaw, Esq., magistrate, to the County Prison to await the action of the coroner. On Jan. 27, 1922, after the coroner’s inquest, she was held to await the action of the grand jury, charged with having caused the death of her husband, Oscar Rosier, and Mildred Reekitt. Bills of indictment were duly prepared by the district attorney’s office, submitted to the grand jury, and four true bills were found on Feb. 15, 1922, by the grand jury, charging her with the murder of her husband, Oscar Rosier, and the murder of Mildred Reekitt. In each instance other bills of manslaughter were found. On the following day, Feb. 16, 1922, after notice had been given to counsel for the defendant by the Clerk of the Court of Oyer and Terminer on Feb. 15, 1922, that she would be arraigned the next day, the defendant was brought from the County Prison on the morning of Feb. 16, 1922, and, being duly arraigned upon the four bills of indictment, pleaded not guilty. Thereupon the Assistant District Attorney, Mr. Speiser, moved that the court set the day of Monday, Feb. 27, 1922, for the trial of this case. To this motion counsel for the defendant interposed an objection. However, the court, having in mind the necessity for the prompt dispatch of public criminal business consistent with justice, set the date' of Feb. 27, 1922, as the date of trial. And now, Feb. 23, 1922, counsel for the defendant, upon his personal petition, sworn to before a notary public, has set forth twenty-five reasons for the continuance of this case. Among his reasons submitted for a continuance is that it is a physical impossibility for him, as counsel for the defendant, to properly prepare this case for trial, due to the fact that there are several witnesses, one in Western Pennsylvania, and others outside of the jurisdiction, as well as others within the jurisdiction, whom he has been unable to locate and whom he will have to serve with process, interview and consider their evidence in relation to a proper defence of the prisoner. The other reasons advanced in the petition the court does not deem it necessary to consider. To this motion for a continuance the District Attorney, under oath before a notary public, of course, has filed an answer, which the court received this morning; that is to say, the date of Feb. 23, 1922. Yesterday being a holiday, we are informed that the answer was deposited with the stenographer of the court. He has filed an objection, and in the answer to the petition it averred that the case should proceed to trial for the reasons contained in that answer. While the allegations are admitted, as contained in the petition, as to the dates upon which the case came on for trial through the various and usual channels of legal procedure, still, on the other hand, the petitioner has averred reasons for a continuance that are necessarily without the knowledge of the District Attorney, that are vague and indefinite and of a general character, and might well be presented in any case where a continuance is sought by counsel. The District Attorney very properly points out his duty as a public officer, with which the court agrees and which the court has been one to aid in every way to expedite a hearing of cases consistent with justice, to the end that public criminal business will not be delayed. However, the court feels that as counsel for the defendant, a reputable and honorable member of the Philadelphia Bar, has made a solemn oath to the petition herein presented, and has personally stated to the court that this defendant would be denied the just and fair trial due her, under the laws, upon this serious crime, the highest known to the law, to wit, murder, to which she is entitled, as well as every other defendant, if the trial should proceed upon the date heretofore fixed, we feel we should take cognizance of that statement and the affidavit of counsel with regard to the inability to give the prisoner a fair trial at this time, and should weigh his personal averment with exceeding care. The fact that counsel has averred in his petition that the present ease has been the subject of widespread publication and notoriety by newspaper reports is of no moment. This case, as well as all'others that come before the bar of justice, is to be considered upon its merits, and justice done to the Commonwealth as well as to the prisoner at the bar, without sympathy, without prejudice and without passion one way or the other.

As we have stated, inasmuch as counsel for the prisoner has averred in his petition that it would be a physical impossibility for him to properly prepare the case so as to give the defendant at this particular time a fair trial, owing to the absence of witnesses, that fair trial which is accorded to all defendants in a court of justice, the court feels that those statements should be carefully considered, and that by reason of the lapse of time that is sworn to in this petition, which the answer of the District Attorney does not deny, though he does state he is unaware of the facts otherwise set forth therein, the prisoner ought to have time to have the witnesses that it is averred are absent.

The court is willing to sit at any time for the trial of this case on a date to be arranged by the District Attorney and counsel for the prisoner. We will try it at any time, either next week or whenever it suits the parties.

Upon this motion, under the petition which has been sworn to by counsel for defendant, as we repeat, stating that he will have to serve with process, interview and consider the testimony of witnesses in relation to the proper defence of the prisoner, serious consideration has been given, and the court feels inclined to grant this motion for a continuance, and, in view of all the facts, the motion for a continuance is allowed and the petition is granted.


author: Langham, P. J.,

text:
    Palmer v. Bells Mills Coal Company et al.

      Workmen’s Compensation Act of 1915 — Rehearing and hearing de novo— Evidence at a hearing de novo should be taken before the board.
    1. Under the Workmen's Compensation Act of June 2, 1915, § 418, P. L. 736, as amended by the Act of June 26, 1919, P. 1». 642, the findings of fact by a referee on a question of fact are final, unless the Compensation Board grants a hearing de novo or a rehearing.
    2 A hearing de novo means a new hearing by the board itself; while a rehearing means another hearing by the referee with authority to make findings of fact, based upon testimony taken at such rehearing, in the same manner as at the original hearing.
    3. When the board desires to substitute its own findings of fact for those made by the referee, it should do so only after other evidence has been heard by it at a hearing de novo.
    4. If the testimony at a hearing de novo is taken before the referee without any member of the board being present, the action of the board thereon in substituting its own findings of fact for those of the referee is unauthorized, and the award will be reversed by the court upon appeal.
    Appeal. C. P. Indiana Co., June T., 1921, No. 219.

      James L. Jack, for claimant.

      Henry I. Wilson and H. J. Nesbit, for defendants.
    July 28, 1921.
   Langham, P. J.,

In this case, Frank Palmer, claimant, brought claim petition against Bells Mills Coal Company, defendant, and insurance carrier, Pennsylvania Bituminous Mutual Association, claiming compensation for an alleged accident which caused an injury which has been described as “impacted fracture of the acromion process of the scapula of right shoulder,” the date of alleged accident being given as Dec. 3, 1919, and the place at mine of defendant company in Burrell Township, Indiana County, Pa. The case was assigned to G. M. Gleason, Du B’ois, Pa., he being the Compensation Referee of the Tenth District. After hearing, said referee filed his report disallowing compensation. From this disallowance of compensation the claimant appealed, and later the Workmen’s Compensation Board granted a hearing de novo. Instead of holding the proceedings, as we believe is contemplated by the act, the board ordered the same referee, G. M. Gleason, to preside at the taking of testimony at what was termed the hearing de novo, such further taking of testimony having been carried out by said referee on Jan. 27, 1920. The Workmen’s Compensation Board, by an opinion filed, set forth, inter alia, as follows: “The testimony taken before the referee was adopted to be considered as if taken before the board, and the testimony at the hearing de novo was taken before Referee Gus M. Gleason.” Then followed the “findings of fact,” “conclusions of law,” and “award” of the board. The ease is before us upon an appeal by the defendants from such “findings of fact,” “conclusions of law” and “award” of the board.

The latter part of section 418 of the Workmen’s Compensation Act of June 2, 1915, P. L. 736, as amended by the Act of June 26, 1919, P. L. 642, reads as follows: “. . . the findings of fact made by a referee to whom a petition has been assigned on any question of fact has been referred, under the provisions of section 419, shall be final, unless the board shall, under the provisions of section 425 of this article, grant a hearing de novo or a rehearing.” Thus it appears that when the board was considering the appeal by the claimant from the disallowance of compensation by said referee, the findings of fact by the referee would be final, unless a hearing de novo or rehearing was granted. At this point we call attention to the fact that the terms “hearing de novo” and “rehearing” are not synonymous terms, the distinction being, as we understand it, that a hearing de novo means a new hearing entirely, and by the board itself; while a rehearing, as applied to this case, means another hearing by the referee, with as full and complete authority and duty in such referee to make findings of fact, based upon competent testimony taken at such rehearing, in the same manner practically as was done at the original hearing. In the hearing de novo, the board may examine the testimony taken before such referee, but if it desires to substitute findings of fact for findings of the referee, there should be testimony taken before it, because section 423 of the act provides that the board “may substitute for the findings of the referee such findings of fact as the evidence taken before the referee and the hoard, as hereinbefore provided, may, in the judgment of the board, require, and may make such disallowance or award of compensation or other orders as the facts so found may require.” Thus it will be seen that when the board desires to substitute findings of fact of its own for findings made by the referee, it should only do so after “other evidence” has been heard by the board. And such “other evidence” may only be heard by the board in such case by hearing de novo. Therefore, as above set forth, the testimony taken at a hearing de novo should be taken before the board itself. This construction of the statute is based upon sound reasoning. The tribunal which hears the testimony is the proper authority to pass upon the credibility of witnesses and make findings of fact. This principle is recognized all through our laws, and particularly in the Workmen’s Compensation Act of 1915, as amended by the Act of 1919, which latter act, so far as the “procedure (article IV)” is concerned, applies to this case. In our opinion, the hearing de novo having been granted by the board, the board itself should have heard the “other evidence.” This theory is strengthened by reading section 419, which provides how the board may have the assistance of the referee in any such cases; but under said latter section it will be noted that the authority (referee) which hears the testimony makes the findings of fact. In the case át bar the referee heard all the testimony, but the board found the facts, and it must be remembered it substituted its findings of fact in place of the findings formerly made by the referee. We hold that such action by the board is not authorized by the act, and that, in consequence thereof, the findings of fact, conclusions of law and award made by the board should be reversed, and the record remitted to the board for further hearing and determination, under section 427 of said act. No testimony was taken by the board as contemplated by section 423 of the act., None of the testimony taken before the referee would be competent to be considered by the board unless the board had heard the testimony taken upon the hearing de novo, and, in coming to this conclusion, we have not overlooked section 425 of said act. We believe said section 425, properly interpreted, limits the hearing de novo to be “before the board.” It says: “Whenever an appeal shall be taken, '. . . the board may, in its discretion, grant a hearing de novo before the hoard or assign the petition for rehearing to a referee designated by it, or sustain the referee’s award or disallowance of compensation.” In this case the board granted a hearing de novo; it did not assign the petition for rehearing to any referee designated by it. Had it done so, such assignment would have carried the authority and duty with it that such referee should make the findings of fact. (See section 419.) Here, again, we call attention to the fact that a rehearing is not a hearing de novo, and that being true, by section 425, a hearing de novo is before the board. Surely, if the board desires to assume the responsibility of finding the facts in any case, it is only reasonable that it be required to listen to the testimony upon which such facts are based; and, furthermore, we feel that the board cannot on any hearing de novo give proper consideration and interpretation of credible testimony without being personally present.

We fully realize that the board might reasonably feel it is justified in having the testimony taken in many of the hearings de novo with a referee presiding, without the presence of any member of the board, because of the great volume of work which comes before it for consideration; but the principle that he who hears the testimony should find the facts is so important that it seems unwise to depart from it.

Based upon the foregoing opinion, the court, therefore, makes the following

Order of court.

And now, to wit, July 28, 1921, after arguments by counsel and due consideration, the court sustains the appellant’s exceptions to the findings of fact and reverses the action of the board founded thereon, including the conclusions of law and award, and the record is remitted to the board for further hearing and determination, as per provisions contained in section 427 of said act. On request of counsel for plaintiff, an exception is allowed plaintiff.


author: Gummey, J.,

text:
    Knoppel’s Estate.

      Wills — Construction—Advancements distinguished from debts.

    1. Where the testator expressly provides that in the settlement of his estate his executors shall deduct from the respective shares bequeathed to his children all moneys advanced them by him during- his lifetime, and clearly shows an intent to create equality among- his children, money advanced to a child for which the child gave him a judgment note is to be treated as an advancement, and not as a debt.

      Decedents’ estates — Assignments of distributive shares — Reassignment to distributee subject to payment of debt due reassignor.

    2. Where the assignee of a distributive share, assigned as collateral, reassigns such share to his assignor subject to the payment of the balance of the debt still due and unpaid, such payment is a condition imposed upon the distributee, and he takes the benefits of the reassignment cum mere; in such case, no presumption of payment arises from the fact that the reassignment was made more than twenty-one years before the audit of the executor’s account.
    Exceptions to adjudication. O. C. Phila. Co., Oct. T., 1899, No. 692.
    Testator died Nov. 9, 1890, leaving a will dated Dec. 17, 1889, duly admitted to probate. Frederick W. Knoppel, one of his sons, was paid by the testator $2988, for which sum he gave him his judgment note dated Oct. 10, 1890, payable one year after date. Other facts appear in the opinion of the court.

      Horace M. Rumsey, for exceptions.

      Lewis, Adler & Laws and Theodore F. Jenkins, contra.
    March 7, 1922.
   Gummey, J.,

Two sets of exceptions are before us. We will consider first those filed on behalf of Adeline A. Bahl and Frederick W. Knoppel, Jr., which relate to the action of the auditing judge in treating as an advancement, and not as a debt, the sum of $2988, given by the testator to Frederick W. Knoppel (father of the exceptants), and represented by the latter’s judgment note.

Advancements are confined to cases of intestacy only, unless an intention to treat the gift as an advancement is clearly shown by the will (Porter’s Appeal, 94 Pa. 832), or by necessary implication (Eichelberger’s Estate, 135 Pa. 160, 170), aided, if necessary, by the surrounding circumstances of the testator, such as the amount and character of his property, the status of his family relations, etc. See Elwart’s Estate, 52 Pa. Superior Ct. 321, and cases cited, including those referred to in the opinion of the court below. In the present instance the will of the testator expressly provides that in the settlement of his estate his executors shall deduct from the respective shares bequeathed to his children all moneys advanced by him to them during his lifetime; and his desire and intention to create equality among all his children is clearly shown, not only by the provision. relating to advancements, but also by the gift of the sum of $1000 to certain of his children, to be paid them upon the day following their respective marriages or their arrival at the age of twenty-one years, in order, as he says, to equalize them with those of his children who had received like sums at the time of their respective marriages.

The auditing judge, aided by the evidence as to the surrounding circumstances of the testator and the financial condition of his son, Frederick W. Knoppel, found that the judgment note under consideration was to be treated as an advancement, and we are not disposed to disturb his finding. Neel’s Estate, 207 Pa. 443, has points of similarity. There the testator’s will antedated the payments to his son, who gave notes to secure them, and in holding that the notes were to be treated as advancements, the court laid stress upon the fact that the will showed that the testator desired equality of distribution among his children.

In Patterson’s Appeal, 128 Pa. 269, Mr. Justice Williams says (page 281): “As between a loan, a gift and an advancement, the presumption is in favor of an advancement, because of its tendency to equality.” And in Schneider’s Appeal, 16 Pa. 407, the testator’s intention to treat gifts as advancements was gathered from the will, although he did not use technical words or phrases in which to express his intention.

Brahm’s Estate, 269 Pa. 82, urged upon us by counsel for the exceptants, was a ease of intestacy, and it was necessary to gather the intention of the decedent from the evidence, unaided by a will; and the finding by the court in O’Connor v. Flick, 271 Pa. 249, also cited by counsel for the exceptant, must be read in the light of the particular facts.

The exceptions filed on behalf of Adeline A. B'ahl and Frederick W. Knop-pel, Jr., are dismissed.

Clara A. Knoppel also filed exceptions. They relate to the action of the auditing judge in charging the share passing to the estate of Charles T. Knoppel, deceased, with the sum of $1000, under the following circumstances:

By deed of assignment dated Feb. 18, 1897, duly recorded, Charles T. Knoppel and wife and William A. Knoppel and wife assigned their interests in the estate of the decedent, Frederick Knoppel, to the latter’s widow, Lena Knoppel, her heirs and assigns; the said Lena Knoppel, by assignment bearing even date therewith, assigned to John H. Ringe, Jr., so much of her right, title and interest in the shares of the said Charles T. Knoppel and William^A. Knoppel in the estate of Frederick Knoppel, deceased, as should equal in value on the settlement of the estate of Frederick Knoppel, deceased, the sum of $1192.02, without interest, in trust to pay certain creditors of the said Charles T. Knoppel and William A. Knoppel.

Lena Knoppel died Aug. 5, 1910; Charles T. Knoppel died June 19, 1907, intestate, leaving to survive him a widow, Clara A. Knoppel, to whom letters of administration on his estate were granted July 11, 1907. William A. Knoppel is still living.

At the audit there was admitted in evidence a deed from Lena Knoppel to Charles T. Knoppel and William A. Knoppel, dated Feb. 24, 1898, duly acknowledged but not recorded, by which she reassigned to them their interests in the estate of Frederick Knoppel, deceased, subject to the payment of $2000 due her; the purpose of the offer being to enable William A. Knoppel and the estate of Charles T. Knoppel to receive their distributive shares of the estate, less their indebtedness of $2000 to the estate of Lena Knoppel, deceased. The auditing judge charged $1000 of the indebtedness against the distributive share of William A. Knoppel and $1000 against the distributive share of the estate of Charles T. Knoppel, deceased, and this latter charge forms the basis of the exceptions; the argument on behalf of the exceptant being to the effect that as the deed of reassignment was dated Feb. 24, 1898, that is, more than twenty years before the date of the audit, there arises a presumption of payment which was not overcome by evidence, and that, therefore, the estate of Charles T. Knoppel, deceased, is entitled to receive its distributive share of the testator’s estate undiminished by the charge of $1000 imposed upon it by the auditing judge.

In reaching our conclusion we have not considered the effect of an alleged admission of non-payment made at the audit by counsel (which was the subject of the first exception), as no such admission appears in the stenographer’s transcript. We are, therefore, relegated to the documentary evidence; and, basing our opinion upon the terms of the assignment to Lena Knoppel and the reassignment by her to Charles T. and William A. Knoppel, we have reached the conclusion that this is not a case for the application of the rule invoked. It is to be taken for granted that, at the time of the reassignment to Charles T. and William A. Knoppel, they were not in funds to pay the balance of their obligations to their mother or they would have done so; and it is a reasonable assumption that it was anticipated that payment would be postponed until they came into possession of their estates in remainder through the death of their mother, the life-tenant; and this event did not happen until Aug. 5, 1910. But, apart from this, when the transaction is considered as a whole, it is one to which the language of Mr. Justice Strong in Moss’s Appeal, 43 Pa. 23, seems particularly applicable. He says (page 35) : “Now, are there any eases to be found in which a chancellor was moved to decree specific performance in favor of a covenantee, where he had not complied with his engagements, but had remained quiescent until he had been discharged by lapse of time? Was ever such a foundation for an equity successfully set up? No such authority has been shown to us, and I know of none. I cannot see what equity such a covenantee can have. An equity in a party which grows out of his own default or laches is certainly a rarity.”

These sons, being indebted to their mother, conveyed to her their interests in their father’s estate by a conveyance absolute on its face and duly recorded, but which, from the subsequent acts of the parties, appears to have been as collateral security for their indebtedness to her, for she immediately after-wards assigned so much of the interest which she thus acquired as might be necessary to pay certain creditors of the grantors, and then, later, realizing that, in the event of her death, the record title of the transaction was such that Charles T. and William A. Knoppel might be deprived of their inheritance, she reconveyed to them the same interests in their father’s estate which they had previously conveyed to her, for a consideration of one dollar, subject to the deed of trust for the benefit of their creditors, “and also subject to the payment to the said Lena Knoppel, her executors, administrators and assigns, of the said balance of $2000 still due and unpaid.”

The case has many points of similarity with the facts in Miller’s Estate, 25 Dist. R. 777, and is to he distinguished from those cases in which a suit is brought on an obligation to enforce a lien, of which Hayes’s Appeal, 113 Pa. 380, is an illustration. The executors of Lena Knoppel are not suing upon an obligation; all they are asking is the performance of the condition imposed upon Charles T. and William A. Knoppel by the deed of reconveyance under which they now claim. If they desire the benefits conferred by the deed, they must accept them cum onere. See Blood v. Crew Levick Co., 171 Pa. 328, 335; Bonebrake v. Summers, 193 Pa. 22; Rohn v. Odenwelder, 162 Pa. 346, 352; Fritz v. Menges, 179 Pa. 122.

The exceptions filed on behalf of Clara A. Knoppel are dismissed, except the first exception, which, in so far as it relates to an admission by counsel, is sustained, and the adjudication is confirmed absolutely.


author: Hargest, P. J.,

text:
    Golden v. Ruhl.

      Contracts — Consideration—Forbearance—Doubtful liability.

    1. An agreement to forbear constitutes sufficient consideration to support a contract if there is a right to sue and a Tiona -fide claim, even though the claim may not be valid.
    2. Compromise of a doubtful liability is sufficient consideration to support a contract where the contract would have constituted a complete defence to an action on the claim thus compromised.
    Motion for judgment n. o. v. C. P. Dauphin Co., Sept. T., 1919, No. 712.

      W. Justin Carter, for plaintiff; Oscar G. Wiclcersham, for defendant.
    Oct. 11, 1921.
   Hargest, P. J.,

This case was brought to recover on an agreement signed by the defendant, which is as follows: “I hereby agree this 3rd day of February, 1917, to pay the funeral expenses of Mrs. McDonnell, but shall not exceed $140. C. H. Ruhl, Penbrook, Pa.”

The testimony at the trial developed that the plaintiff heard her mother, who was eighty-five years old, scream, and saw the driver of the defendant’s baker wagon bring her mother into the plaintiff’s house. The driver placed her in a chair, and Mrs. McDonnell said: “This man ran over me.” The driver said: “No, she was only scared.” At the time, Mary Golden’s niece was lying dead, and Arthur C. Hauck, an undertaker, came to the house and found the old lady “with a broken pelvis, a broken leg and stomach crushed.” (Testimony, page 12.) He took her to the Polyclinic Hospital, where she died Feb. 2nd. The plaintiff applied to Hauck for the burial of her mother, and told him that they did not want to incur any more expense than that incurred for the niece, which was $139, but that they had no money. Thereupon Mary Golden authorized Hauck to see the defendant, telling Hauck that she would not make any trouble or sue for damages if he paid the funeral expenses. (Testimony, page 16.) But at that time, her mother not having yet been buried, she was not thinking of bringing a suit. (Testimony, page 17.) Hauck, thereupon, together with John Golden, a brother of the plaintiff and son of the deceased, conferred with the defendant and his driver, and John Golden testified that in the conference the driver first denied that he had run over Mrs. McDonnell, “then afterwards he owned up and said he did run over her” with the “hind wheel of the wagon.” (Testimony, page 43.) The next morning Hauck, the undertaker, called upon the defendant at market, and, as Hauck testified, communicated to the defendant that the Goldens “do not want to make you any trouble and will be satisfied if you pay the funeral expenses.” (Testimony, pages 10 and 11.) The defendant testified that Hauck, instead of saying that the Goldens would not make him any trouble, used the word “prosecution,” and said that he might be prosecuted for manslaughter. The defendant thereupon signed the paper above quoted. Hauck buried Mrs. McDonnell, and the bill amounted to $139.50, which Mary Golden subsequently paid to Hauck. The defendant refused to pay any part of it.

At the trial the case was submitted to the jury to determine whether, in making the agreement in writing, the defendant understood that he was securing from the plaintiff her forbearance in bringing suit against him for injuries to her mother, and they were told that if the agreement was made with the understanding on the part of the defendant that a suit might be brought against him and that the plaintiff would forbear bringing suit if he signed the agreement, that would be a good consideration moving to the defendant for the agreement which would sustain the contract and the plaintiff might recover. But that, if the agreement was made because he was afraid of a criminal prosecution for manslaughter, there would be no consideration moving to the defendant; and in that event their verdict should be for the defendant. The jury found for the plaintiff.

At the trial two points were reserved: One, “that there is no evidence in this case from which the jury could find that there was such forbearance as would amount to a good consideration passing between the plaintiff and the defendant in this suit;” and, the other, “that, under all the evidence in this case, the verdict must be for the defendant.”

A motion for judgment notwithstanding the verdict was subsequently made.

Discussion.

As to forbearance: The defendant contends that, because the plaintiff did not, at the time she authorized Hauck to confer with the defendant, contemplate suit, there was no question of forbearance; that there was no proof of negligence on the part of the defendant, and that this promise, in effect, was one to pay the debt of another, because it inured to the benefit of the undertaker. We cannot agree with any of these positions.

It would be unconscionable to hold that the forbearance from bringing a suit, which the defendant secured, must have arisen from a fully formed plan to sue the defendant for the injuries to her mother, and that such intention should be completely formed before her mother was buried. If the right exists to bring a suit, it is not necessary that the plan should first be decided upon before the forbearance is obtained. Where the right exists, the plan to enforce the right may be subsequently developed.

“There is a good consideration if the promisee, in return for the promise, does anything legal which he is not bound to do, or refrains from doing anything which he has a right to do, whether there is any actual loss or detriment to him or actual benefit to the promisor or not:” 13 Corpus Juris, 316, note 92.

“Refraining from bringing a suit may furnish a consideration. The actual forbearance or the promise to forbear to prosecute a claim on which one has a right to sue is universally held to be a sufficient consideration:” 13 Corpus Juris, 344, note 49.

In a few states it is held that forbearance to sue on an unfounded claim cannot support a promise, and that the claim must be an actually valid one in law. This was the doctrine of the early English cases, but the doctrine of the large majority of states, and of the later English cases, is that “one has a right to sue where his claim is reasonably doubtful, and that forbearance to enforce a claim which might reasonably be thought doubtful is a sufficient consideration, on the ground that the ‘reality of the claim which is given up must be measured, not by the state of the law as it is ultimately discovered to be, but by the state of the knowledge of the person who at the time has to judge and make the concession:’ ” 13 Corpus Juris, 346, and note.

“The surrender of a doubtful claim of right is a good consideration for a contract:” Sutton v. Dudley, 193 Pa. 194. So, also, is the settlement of doubtful questions which “would require tedious and expensive litigation:” Gormly v. Gormly, 130 Pa. 467, 473.

A promise “to pay a specific sum on account of a liability for unliquidated damages is invalid, unless the promise be conditioned upon some new consideration, such as delay or forbearance or release:” Wimer v. Worth Township, 104 Pa. 317, 320. The converse of this case is that a promise to pay unliquidated damages is valid if based upon forbearance, and even forbearance to sue for a reasonable time is a sufficient consideration: Sidwell v. Evans, 1 P. & W. 383.

The result of the cases seems to be that if there is a right to sue and a bona fide claim, even though the claim has not been adjudged to be valid, and there is a forbearance to bring suit to enforce such a claim, such forbearance will constitute a sufficient consideration. We think that the facts in this case measure up to this standard. Mary Golden was the daughter of the injured woman. Her mother had been injured and died, and, according to the testimony of John Golden, the driver admitted having run over her. There was certainly a right to sue, either immediate or which might have been perfected by letters of administration. Whether the defendant was liable for negligence was doubtful. The question of negligence was not at issue, and evidence upon it was not admitted at the trial in this case. Mary Golden’s right to sue could not be denied because she was not named as a party in the contract. The contract was made by the defendant with Hauck, her agent. It inured to her benefit. She was in fact, though not in form, a party to this contract; but even “one who is not a party to a contract may sometimes maintain an action upon it in his own name, where he is the only one who is beneficially interested in its performance, and where the party with whom it was actually made has ceased to have any real interest in it:” Depuy v. Loomis, 74 Pa. Superior Ct. 497. Even assuming that Hauck was the party with whom the contract was actually made, he ceased to have any interest in it when Mary Golden paid him the funeral expenses; but there was no contract with Plauck. There was no consideration for any contract with him. Whatever contract was made by him with Ruhl was made as the agent of Mary Golden and her brother. There is no question in this case of paying the debt of another. Ruhl had not engaged, by his contract, to pay the debt of another. He agreed to compromise his doubtful liability to the person who now brings the suit. Therefore, the authorities cited by the defendant’s counsel as to forbearance to sue on a promise to pay the debt of another person do not apply. We are, therefore, of opinion that there was sufficient evidence for the jury to find such forbearance to sue on the part of the plaintiff as would support the consideration for the contract now sued upon.

As to compromise of a doubtful liability: This case was not submitted upon the theory that the agreement sued upon presented a compromise of a doubtful liability on the part of the defendant; but in considering the sixth point which was reserved, and which is, whether, under all the evidence in this case, the verdict must be for the defendant, we must take this into consideration. A compromise of a disputed claim is a consideration sufficient to support an agreement of settlement, even though the claim is for negligence: Scranton Gas and Water Co. v. Weston, 57 Pa. Superior Ct. 355, 360, and cases cited.

“Where the parties treat upon the basis that the fact which is the subject of the agreement is doubtful, and the consequent risk each is to encounter is taken into consideration in the stipulation assented to, the contract will be valid, notwithstanding any mistake of one of the parties, provided there be no concealment or unfair dealing by the opposite party that would affect any other contract:” Perkins v. Gay, 3 S. & R. 327, 331; Brown v. Sloan, 6 Watts, 421; Logan v. Mathews, 6 Pa. 417; Gaynor v. Quinn, 212 Pa. 362.

“The compromise of an action of slander, in which the words laid in the declaration were not actionable, is a good consideration for a note for the payment of money:” O’Keson v. Barclay, 2 P. & W. 531.

Suppose the plaintiff had either brought suit against this defendant or had secured letters of administration and brought suit as administratrix against this defendant to recover damages for the death of her mother, in which the funeral expenses would have been an element of damage, could not the defendant have shown as a complete defence to such an action in trespass that the claim had been compromised and settled by the agreement now sued upon? We think he could, and, measured by this test, we also think that there was sufficient consideration for this agreement and that the present suit can be maintained.

For these reasons, we overrule the motion for judgment notwithstanding the verdict, and direct the prothonotary to enter judgment in favor of the plaintiff and against the defendant, upon the payment of the jury fee.

From William Jenkins Wilcox, Harrisburg, Pa.


author: Copeland, J.,

text:
    Overstreet v. Miller.

      Affidavit of defence — Sufficiency thereof — Sales—Warranty.
    1. An affidavit of defence should contain a clear and concise statement of the facts which constitute a basis for the assessment of damages under the legal rule by which they are measured. A warranty must be clearly stated and not left to inference.
    2. Defendant’s affidavit of defence to plaintiff’s statement of claim for a sale of 260 sacks of potatoes, less freight, admitted the shipment to, and receipt by, him of the potatoes at the price charged, but alleged the sale to him was of potatoes “good and marketable and fit for domestic use,” and admitted the sale by him of seventy-three sacks as good and salable, but averred that the remaining 187 sacks were mostly decayed and rotten, and were sold at prices representing losses: flew, that the affidavit was insufficient in not showing facts for the proper measure of damage, as for a breach of warranty or as for a breach of contract of sale.
    Motion for judgment for want of a sufficient affidavit of defence. C. P. Westmoreland Co., Feb. T., 1921, No. 184.

      Taylor & Taylor, for plaintiff; H. H. Dinsmore, for defendant.
    Aug. 29, 1921.
   Copeland, J.,

This is an action brought by the plaintiff against the defendant to recover the sum of $982.08, with interest from Aug. 13, 1920.

The plaintiff, in his statement in this case, sets forth at the time the cause of this action arose he was engaged in the wholesale produce business in the City of Pittsburgh, Pennsylvania, and the defendant was engaged in the grocery business in the Borough of New Kensington, and as such wholesaler, on Aug. 13, 1920, sold to the defendant 260 sacks of potatoes at $4.25 a sack, upon which sacks he, the plaintiff, was to pay freight charges, which amounted to $122.92, and that the amount for which the potatoes sold was $1105; the freight charges deducted therefrom left the balance of $982.08, for the recovery of which this action is brought.

The defendant, in his affidavit of defence and his amended affidavit of defence, admits that the plaintiff shipped, and he received, the amount of potatoes the plaintiff claims in his statement, and that the price charged was the amount the defendant was to pay, but avers that the plaintiff sold the potatoes to him as good and marketable and fit for domestic use; that 73 sacks of the 260 sacks of potatoes were good and salable and were sold at $4.25 a sack; that the remaining 187 sacks were mostly decayed and rotten and sold for from 50 cents to $1.25 a sack, and that he does not owe the plaintiff the full amount of his claim.

The plaintiff took a rule for judgment for want of a sufficient affidavit of defence to both the original and the amended affidavit of defence, and we are of the opinion that judgment should be entered on the rule, for the reason that the defendant does not deny that he contracted for and ordered 260 sacks of potatoes at $4.25 a sack, or that he received the 260 sacks, but merely infers that there was a warranty that the potatoes were marketable and fit for domestic use. This inference of a warranty as to the condition of the potatoes is not sufficient. It was said in Ogden v. Beatty, 137 Pa. 197, 201: “Where goods are sold with a warranty of quality and are retained by the purchaser, the measure of damages for a breach of the warranty is the difference between the market value of the goods contracted for and of the goods delivered. In an action for the price of the goods, the purchaser may interpose this difference as a defence pro tanto. If an affidavit of defence is required, it should contain a clear and concise statement of the facts which constitute a basis for an assessment of the damages under the legal rule by which they are measured. All the elements of a defence should appear with reasonable certainty in the affidavit, and if any fact essential to complete the defence is omitted, the affidavit is insufficient.”

The defendant in the case at bar has not set forth in a clear and concise statement the facts which will constitute the basis for an assessment of damages; therefore, his affidavit of defence is insufficient.

The defendant in the case received this merchandise, accepted it and undertook to dispose of it, and if the merchandise was in the condition he alleges in the amended affidavit, it was his business to notify the plaintiff and return the merchandise to him, or, having accepted the merchandise from the common carrier, he should have sold them at the market price and so set forth in the affidavit the market values of the merchandise. He did neither. He undertook to dispose of this merchandise at whatever price he chose. This is not the measure of damage for breach of warranty.

It was said in Gould v. Gage, 118 Pa. 559, 565: “The affiant further says the tables were ‘wholly unfit for the defendant’s trade, and not worth to this defendant,’ etc. As the defendant kept the goods and did not return them, it was immaterial whether they were fit for his particular trade or not, or what they were worth to him; he should state their value in the market with reasonable accuracy and liquidate his damages accordingly. The affidavit is general in its terms and evasive in its effect.”

In the case of Dunn v. Pittsburgh J. Manuf. Co., 43 Pa. Superior Ct. 551, 556: “The defendant, having received the goods and sold a portion of them to its customers, must pay either the contract price or the market value, ajid should, therefore, have set forth in the affidavit of defence the market value of the chains. ... In the present case it is very apparent, from the affidavit of defence, that the defendant was not at any time in a position to rescind the purchase and return the goods, because portions of the chains had been sold to defendant’s customers, and the evasive language used warrants the inference that at no time was the defendant in a position to rescind the contract and return all of the goods.”

And so here in the case at bar, the defendant having received the goods, sold a portion to his customers, he was at no time in a position to rescind the contract or return the goods. Therefore, it is to be seen from these authorities that the affidavit and amended affidavit are both insufficient to prevent judgment.

And now, to wit, Aug. 29, 1921, after argument, and after due and careful consideration, it is ordered, adjudged and decreed that the rule for judgment for want of sufficient affidavit of defence be and the same is hereby made absolute. From William S. Rial, Greensburg, Pa.


author: HassleR, J.,

text:
    Clark v. Reardon.

      Taxation of costs- — Jury fee — WitTiesses’ fees — Service of subpmna.

    1. A plaintiff may have his costs taxed on obtaining a verdict, before he has paid the jury fee-and had judgment entered, but costs can only be collected after the case is finally disposed of.
    2. Witness fees are properly charged for witnesses who were notified not to appear but failed to receive the notices, and for witnesses who were present but not called, and for serving a subpoena where the case was afterwards continued.
    Appeal from taxation of costs. C. P. Lancaster Co., Feb. T., 1920, No. 16.

      John A. Coyle, B. F. Davis and K. L. Shirk, for defendant and appeal.

      Charles W. Eaby, contra.
    July 2, 1921.
   HassleR, J.,

This is an appeal from taxation of costs. Both parties were present before the prothonotary when the costs were taxed. It is contended that the taxation of costs was premature, in that the jury fee was not paid, and, therefore, no final judgment was entered in the case. We do not agree with this. The parties were entitled to have their costs taxed after the verdict, but can only collect them after the case is finally disposed of.

No proof is offered to show that the finding of the prothonotary in regard to the witness costs was erroneous. It is contended that the witnesses at one of the terms, when it is claimed the case was continued before that week, were notified, but did not receive the notices and attended court. Under these circumstances, of course, the costs would follow the verdict. The same is true of the service of the subpoena. It was the duty of the plaintiff to subpoena such witnesses as she thought she needed at the trial, and if, before the time of trial, she discovered that some of them were not needed, we think the defendant should not complain that the witnesses were excused, as this saved the additional expense which would have been incurred by their attendance at court. It is also objected that three witnesses were subpoenaed to court, but not heard. At the trial, it is possible that the plaintiff found that she did not need these witnesses. In the absence of proof that they were not proper witnesses or that there was some abuse in having them attend court, we cannot refuse to allow the plaintiff their fees.

The appeal is dismissed and the finding of the prothonotary confirmed.

From George Ross Eshleman, Lancaster, Pa.


author: Reader, J.,

text:
    Metal Products Company v. Levine.

      Practice — Sci. fa. sur mortgage — Parties — Terre-tenants — Default — Notice of.

    1. The only effect of a failure to name a terre-tenant in a soi. fa. sur mortgage is to leave him unaffected by the judgment on the writ, so that he can thereafter avail himself of any defence which he could have raised as a party to the writ.
    2. When a mortgage states that interest is due on a date certain, and that, upon default in payment, the whole debt shall become due and payable, no further notice to the mortgagor or terre-tenant is required, and, upon the happening of the default and the expiration of thirty days thereafter, the mortgagee may bring suit.

      Practice, C. P. — Effect of discontinuance of suit — Right to bring new suit.

    3. A voluntary discontinuance, dismissal or non-suit by a party plaintiff does not satisfy and discharge the debt or cause of action, and, hence, does not preclude him from bringing a new suit for the same cause, except where the basis of the dismissal is an agreement between the parties respecting the matters in controversy.

      Right of legal plaintiff to sue without joinder of equitable plaintiff.

    4. In the absence of an averment of payment of any part of the debt secured by the mortgage, it is no defence to aver that other persons besides the plaintiff are interested in the amount claimed.
    Rule for judgment for want of sufficient affidavit of defence. C. P. Beaver Co., March T., 1921, No. 160.

      Holt, Holt & Richardson, for plaintiff; W. A. McConnel, for defendant.
    Aug. 1, 1921.
   Reader, J.,

The above entitled proceeding is a writ of scire facias upon a mortgage from defendant to plaintiff, dated June 1, 1920, and recorded in the Recorder’s Office in and for Beaver County in Mortgage Book, volume 188, page 264, said mortgage being given to secure the payment of certain promissory notes, as set out in the plaintiff’s statement of claim.

To the statement of claim an affidavit of defence was filed by Isaac Levine, the mortgagor and defendant. Pittsburgh Steel Tube Company, a corporation, became the owner of the property by purchase from Isaac Levine prior to the issuing of said writ of scire facias, and the sheriff, finding this corporation in possession of the property, served the scire facias upon it and added it as a party to the proceeding. This corporation also filed an affidavit of defence.

Pittsburgh Steel Tube Company undertakes to defend against the writ on the ground that, though its deed was recorded before the issuing of the writ, it was not named as terre-tenant. This fact in itself would not, in any event, be a defence to the writ. The only effect of a failure to name the corporation as a terre-tenant would be to leave it unaffected by the judgment on the writ to the extent of being able subsequently to avail itself of any defence which it could have raised had it been made a party as terre-tenant. In view of the fact, however, that the corporation was added by the sheriff as a party to the suit, was served with the writ by the sheriff and entered a general appearance in the proceeding, we think this defence is without merit.

The defence is also set up in the affidavit of defence of the corporation that none of the unpaid notes secured by the mortgage, at the time of issuing the writ of scire facias, were then due, and that there was due at that time only six months’ interest, which fell due on Dec. 1, 1920, and that the scire facias was issued without notice to defendant or the said corporation, and that, upon learning of the issuance of the writ, the corporation tendered to plaintiff the amount of said interest and the further sum of $90.

It is also contended that, under these circumstances, the plaintiff is not entitled to recover attorney’s commission.

The mortgage on its face discloses' the time when interest is due and payable, contains a provision that, upon default in payment of interest, the whole debt secured by the mortgage shall become due and payable, with interest and an attorney’s commission for collection. No further notice to the defendant or terre-tenant was required. Upon the happening of the default and the expiration of thirty days thereafter, the right of the plaintiff to proceed was complete.

Two principal defences are raised by both affidavits of defence.

The first is that a prior writ of scire facias was issued upon this mortgage at No. 223, December Term, 1920, and that this scire facias was settled and discontinued without plaintiff reserving the right to issue further and additional writs of scire facias in case of further default, and that by reason thereof the plaintiff has lost the right to issue further writs of scire facias for the collection of the mortgage under the terms of the scire facias clause of the mortgage itself, and is limited to the writ of scire facias provided by statute in the case of an overdue mortgage. The averments in the affidavit of defence as to the discontinuance of the writ of scire facias, at No. 223, December Term, are not supported by the record. The discontinuance entered on the record in that proceeding is as follows:

“Nov. 26, 1920, this proceeding is hereby discontinued without prejudice to the rights of plaintiff to issue an alias writ of scire facias in case of further default. Holt, Holt & Richardson,
Attys. for Plff.”

It was contended at the argument of the case that the court cannot take notice of the language of the discontinuance, as it was not set out in full in the pleadings in the present case and was not offered in evidence. In view of the fact that the entering of the discontinuance is specifically referred to and set up as a defence, and the record must be inspected by the court in ascertaining the fact of the discontinuance, it is difficult to see how the terms of the discontinuance can be withheld from the consideration of the court.

Aside, however, from the terms of the discontinuance in this case, the court is of opinion that the discontinuance of the former writ generally would not have the effect contended for by the defendant. The plaintiff would still have the right to issue a writ to collect the mortgage upon the happening of any subsequent default within the terms of the mortgage. It is apparent from the reeord that the default upon which the scire facias was issued at No. 160, March Term, 1921, occurred subsequent to the discontinuance of the prior writ at No. 223, December Term, 1920.

The general rule as to the effect of a voluntary discontinuance is thus stated in 18 Corpus Juris, 1171 (60-2) : “The general rule is that a voluntary discontinuance, dismissal or non-suit by a party plaintiff does not of itself satisfy and discharge the debt or cause of action, and, hence, does not preclude plaintiff from bringing a new suit for the same cause, except where the basis of the dismissal is an agreement between the parties respecting the matters in controversy. It settles no right of property between plaintiff and defendant, nor is it an admission of any right whatever in defendant.”

In the case of Weston v. Board of Railroad Commissioners et al., 205 Mass. 94, 91 N. E. Repr. 303, the general rule is stated: “While the rule in equity is not precisely the same as at law, the general principle, both at law and in equity, is that the plaintiff may abandon his suit without being barred whenever it can be done without injuriously affecting rights of the defendant acquired by reason of the bringing of the suit.”

Other cases in which the rule thus stated is declared or referred to are: Hollingsworth & Vose Co. v. Fox Borough Water Supply District, 171 Mass. 450, 50 N. E. Repr. 1037; Derick v. Taylor, 171 Mass. 444, 50 N. E. Repr. 1038; Worcester v. Lakeside Manuf. Co., 174 Mass. 299, 54 N. E. Repr. 833; Haldeman et al. v. United States, 91 U. S. 584; Lindsay v. Dutton, 217 Pa. 148; Berger v. Long, 1 Walker (Pa.), 143.

In the case of Taylor v. Foulkrod, 3 W. N. C. 171, the rule was applied by the Court of Common Pleas of Philadelphia to a state of facts quite similar to the facts in this case.

The report of the case shows that it came before the court on a rule for judgment for want of a sufficient affidavit of defence. The proceeding was soire facias sur mortgage, containing a clause that, in default of payment of interest, the whole amount should become due. The affidavit, of defence alleged that a suit had been brought on the same mortgage to No. 626, June Term, 1875, in Common Pleas No. 1, had been put at issue and ordered for trial, but subsequently was discontinued. There had been no default in the payment of interest since this discontinuance, and the present suit was upon a default in the payment of interest which had occurred during the pendency of the former suit. The rule for judgment was made absolute.

Applying the principle stated in the foregoing cases to the present case, the court is of opinion that the issuing of the writ of scire facias at No. 223, December Term, 1920, and the discontinuance thereof, is not a valid defence to the second scire facias on the same mortgage at No. 160, March Term, 1921.

The second defence raised by both affidavits of defence is that the plaintiff was not the holder of all the notes secured by the mortgage at the time of issuing the writ of scire fad as, and could not issue the writ without the joinder of the holders of all the notes secured by the mortgage, and is not entitled to judgment for the full amount of the unpaid notes.

No provision of the mortgage or rule of law, however, limits the right of recovery on the mortgage in the manner claimed. Such a rule might in many cases destroy the remedy of those for whose security the mortgage was given. The plaintiff in this case has the legal title to the mortgage and has the right to recover upon that title. If others are equitably interested in the mortgage by ownership of part of the debt secured by it, their rights can be preserved by control of the judgment entered. The fact of their interest, however, is not a defence available to the defendant or terre-tenant. In the absence of an averment of payment of the whole or any part of the debt secured by the mortgage, it is no defence to aver that not alone the plaintiff, but others as well, are interested in the amount claimed.

“The right to recover is founded on the claim of the legal plaintiff, and whether this right remains in him or has passed to an assignee is immaterial. The cause is to be tried without relation to an equitable plaintiff, unless an issue is raised between such plaintiff and the defendant; as when a defence is set up which, while good against the legal plaintiff, cannot be made against the equitable plaintiff, or the defendant alleges a defence or a counter-claim against the latter which would not avail against the former: Berks County v. Levan, 86 Pa. 360; Crawford v. Stewart, 38 Pa. 34:” American Manuf. Co. v. Morgan Smith Co., 25 Pa. Superior Ct. 176 (183).

“The suit is in the name of the legal plaintiff, to the use of the assignee, and there is nothing in the defendant’s affidavit of defence which makes it material whether the assignment is bona fide or not. A recovery in this suit will protect the defendant from another suit for the same cause of action: . . .” Kamber v. Becker, 27 Pa. Superior Ct. 266 (269). See, also, Sentinel Printing Co. v. Long, 28 Pa. Superior Ct. 608; Brumbach v. Johnson, 187 Pa. 602.

The court is, therefore, of opinion that plaintiff is entitled to recover the full amount due upon the mortgage, including the attorney’s commission.

On June 3,1921, a supplemental affidavit of defence was filed, averring that notes amounting to $10,000, with $600 in full of the interest on said notes to June 1, 1921, the date on which said notes fell due, were paid. This is conceded by plaintiff, and allowance should also be made for the same in entering judgment. Interest on the unpaid notes should also be allowed to the date of entering judgment.

Order.

Now, to wit, Aug. 1,1921, it is ordered, adjudged and decreed that judgment be entered in favor of the plaintiff and against the defendant, Isaac Levine, and the terre-tenant, Pittsburgh Steel Tube Company, for want of a sufficient affidavit of defence, to be liquidated as follows:

Debt . $18,000.00

Interest to Dec. 1, 1920. 540.00

Attorney’s commission. 927.00

Interest to June 1, 1921. 540.00

Interest on $8000, from June 1, 1921, to Aug. 1, 1921- 80.00

CREDIT. $20,087.00

Notes paid. $10,000.00

Interest paid. 600.00

- 10,600.00

$9,487.00

Prom P. H. Laird, Beaver, Fa.


author: Prather, P. J.,

text:
    Knights of Columbus v. Lesko.

      Practice, equity — Extra-territorial service — Interpleader—Beneficial associations — Death benefits — Act of April 6, 1859.

    1. Where two women claim death benefits from a beneficial association for the same member, and institute separate suits against the association in the respective counties in which they reside, the association may file a bill of interpleader against one of the claimants in one county and have extra-territorial service of the bill against the second claimant in the other county, if the bill contains a prayer that it be permitted to pay the insurance money in controversy into court.
    2. In such a case, as the money in controversy has to all intents been brought into court, and as one of the principal'defendants has been served, extra-territorial service against the other is proper under the second provision of the Act of April 6, 1S59, P. L. 387.
    Rule to vacate extra-territorial service as to Mabel Lesko. C. P. Crawford Co., Nov. T., 1920, No. 2, in Equity.

      W. 3. Sirdevan, for plaintiff.

      C. W. Benedict and Brooks, English & Quinn, for defendants.
    July 5, 1921.
   Prather, P. J.,

The subject-matter of this controversy is a $1000 life insurance policy upon the life of John Joseph Lesko, deceased.

Defendants each claim as beneficiaries the entire sum of $1000, and each has brought her action in assumpsit against plaintiff. The action of Mabel Lesko is pending in Erie County, where she resides, and the action of Anna Lesko is pending in Crawford County, where she resides.

Plaintiff, having filed its bill at above term and number, naming said claimants as defendants, with prayer that they be required to interplead and that it be permitted to pay the insurance money in controversy into court, and having made service of said bill upon the said Anna Lesko, obtained an order, after proper affidavit filed, for service of said bill upon Mabel Lesko, the other defendant, pursuant to the provisions of the Act of April 6, 1859, P. L. 387.

Thereupon counsel for Mabel Lesko entered their appearance de bene esse and moved to vacate said order of service, assigning, inter alia, that “the court has no authority to authorize extra-territorial service of the bill of complaint.”

Counsel for motion stress their contention for vacation of such service upon the fact that the suit in equity is not “concerning goods, chattels, lands or tenements . . . situate . . . within the jurisdiction of such court,” and seem to ignore the second provision or condition that determines the validity of such order and service.

Such extra-territorial service may be had on a non-resident defendant, as expressed by Justice Sharswood: “Where the court has acquired jurisdiction of the subject-matter in controversy by the service of its process on one or more of the principal defendants:” Coleman’s Appeal, 75 Pa. 441, 458.

This is a substantial restatement of the language of the act. To the same effect are Eby’s Appeal, 70 Pa. 311; Bird v. Sleppy, 265 Pa. 295.

In Warrington v. Perry et al., 13 Dist. R. 806, an authority relied upon by defendants, extra-territorial service was set aside on the grounds (a) there was no property in dispute situate in the county invoking the jurisdiction; (b) the “grave question as to whether or not these two defendants, who were served within the jurisdiction,” were “principal defendants within the meaning of the act;” and (c) “whether the property, which is personal property, is sufficiently averred to be within the jurisdiction of the court at the filing of the bill.”

In this case the court arrived at the conclusion that the defendants served were not “principal defendants,” because they “were not parties to the contract set forth in the bill.”

Plaintiff is merely a stakeholder without interest as to which of the two claimants may receive this money.

In Schmaltz v. York Manuf. Co., 204 Pa. 1-13, the Supreme Court quoted Phelps v. McDonald, 99 U. S. 298, with approval as follows: “Where the necessary parties are before a court of equity, it is immaterial that the res of the controversy, whether it be real or personal property, is beyond the territorial jurisdiction of the tribunal. It has the power to compel the defendant to do all things necessary, according to the lex loci rei sitie which he could do voluntarily, to give effect to the decree against him. Without regard to the situation of the subject-matter, such courts consider the equities between the parties, and decree in personam according to those equities, and enforce obedience to their decrees by process in personam.”

And the court further said: “So long as an individual is a citizen of a state, he is subject to the process and decrees of its courts of equity, regardless of the locus of the subject-matter indirectly affected by the litigation.”

Plaintiff, so far as it is able, has, to all intents and purposes, brought the money in controversy into our court. The means to discharge any judgment that either defendant may secure in her action of assumpsit is constructively in our court.

We are, therefore, of the opinion that within the second provision of the Act of 1859, service of the hill having been made upon one of the principal defendants, our order of service upon Mabel Lesko, the other defendant and non-resident, was properly granted.

It follows that the rule to vacate said service should be discharged.

Now, July 5, 1921, rule to vacate extra-territorial service on Mabel Lesko is discharged.

From Otto Kohler, Meadville, Pa.


author: Berger, J.,

text:
    Anstock, Guardian, v. Director General of Railroads.

      Workmen’s compensation — Insanity of injured person — Parties claimant— Next friend — Guardian—Amendment—Words and phrases — Act of June 2, 1915.

    1. A next friend is one who, without being regularly appointed guardian, acts for the benefit of an infant, married woman or other person not sui juris.

    2. To maintain a suit, the next friend need not be appointed by the court.
    3. A wife may file a petition as next friend of her husband under the Workmen’s Compensation Act of June 2, 1915, P. L. 736, where the husband has become insane from his injuries.
    4. Where, after such a petition has been filed, a guardian has been legally appointed for the insane workman, the record may be amended even after the statute of limitations has run, so as to substitute the guardian as party claimant, and the award may be made to him as guardian.
    5. The only distinction in Pennsylvania between instituting an action by a next friend or a guardian of an infant, and in so instituting one in behalf of a lunatic or an habitual drunkard, is that in the latter case the action must be brought in the name of the lunatic or habitual drunkard and of the committee or guardian; and in the former it is brought by the next friend or guardian in the name of the infant.
    Appeal from decision of the Workmen’s Compensation Board. C. P. Schuylkill Co., Sept. T., 1921, No. 464.

      Roger J. Dever, for plaintiff; Otto E. Farquhar, for defendant.
    Nov. 7, 1921.
   Berger, J.,

This is an appeal from an award of compensation to “John Anstock, guardian of Howard Blackwell.” The claim petition filed Aug. 4,1920, was executed on form W 18, adopted by the board for public use, by Mrs. Verna Blackwell, the wife of the above-named Howard Blackwell, and signed by her, “Mrs. Verna Blackwell, claimant.” The petition was entitled, “Mrs. Verna Blackwell, wife and next friend of Howard Blackwell, claimant, v. Director General of Railroads, United States Railroad Administration, Lehigh Valley Railroad, defendant.” It alleged in substance that the claimant in whose behalf the petition was filed was in the employ of the defendant as a machinist on Jan. 22, 1920, when he sustained injuries to his left hand and right forehead, which resulted in insanity, causing total disability for an indefinite period, and it concluded with a prayer for an award of compensation to the claimant.

The,answer to the petition denied generally every allegation of fact contained therein, and set up affirmatively, inter alia, that Mrs. Verna Blackwell had no legal claim for compensation, and that a claim for compensation for Howard Blackwell could only be instituted “by the guardian or committee of the said Howard Blackwell.” All the testimony taken before the referee was taken subject to the objection of the defendant that Mrs. Blackwell had no interest which entitled her to maintain the action. No amendment of the claim petition was moved, and no amendment of it was made by the claimant. The referee, in his eleventh finding of fact, found that the Court of Common Pleas of Schuylkill County, on April 18, 1921, “decreed that Howard Blackwell is unable to take care of his property owing to mental weakness, and appointed John Anstock guardian to take care of the same,” and from all the facts drew the legal conclusion “that compensation is due the guardian of the injured employee until such time as there is a change in his condition.” Two appeals — one from the referee’s findings of fact, the other alleging errors of law — were taken from this decision to the board, which, in an opinion by Jarrett dismissing the appeals, sustained the referee’s findings of fact, conclusions of law, and affirmed his award. In support of the defendant’s appeal from the decision of the board, thirteen exceptions have been filed which counsel for the appellant have summarized into two questions of law, which we shall state in the language of counsel and discuss separately.

The first question is: “1. Was ‘Mrs. Yerna Blackwell, wife and next friend of Howard Blackwell,’ the proper and authorized party to file a petition and institute proceedings for compensation under the Workmen’s Compensation Act for injuries received by her said husband?” That is, can a claim petition be presented and prosecuted on behalf of an insane person during the period of his insanity by a person acting as his next friend? It is undisputed that Howard Blackwell, at the time the claim petition was filed by his wife as his next friend, was insane and so continues. A next friend is “one who, without being regularly appointed guardian, acts for the benefit of an infant, married woman or other person not sui juris:" 3 Bouvier’s Law Dictionary, 2348. In respect to want of capacity to sue, there is no difference between an infant and a lunatic. It is well established that an infant can maintain an action in the name of his next friend without the appointment of such next friend by the court: Heft & Hix v. McGill et al., 3 Pa. 256, 264; Ferencz v. Greek Catholic Union, 54 Pa. Superior Ct. 642, 647. The general principle respecting the maintenance of an action by the next friend of an infant is stated in Morgan v. Potter, 157 U. S. 195, 39 Law Ed., 670, in this manner: “It is the infant, and not the next friend, who is the real and proper party. The next friend, by whom the suit is brought on behalf of the infant, is neither technically nor substantially the party, but resembles the attorney or guardian ad litem, by whom a suit is brought or defended on behalf of another. The suit must be brought in the name of the infant, and not in that of the next friend.” It has also been held that a lunatic or insane person, not yet adjudged insane, might sue by his next friend, though by statute it had been provided that the conservator or guardian of a lunatic should sue for and receive in his own name, as conservator or guardian, all personal property and demands due his ward. See Isle v. Cranby, 199 Ill. 39, 64 N. E. Repr. 1065; Holzheiser v. Gulf W. T. & P. Ry. Co. et al., 11 Tex. Civ. App. 677, 33 S. W. Repr. 887.

The only distinction in our State between instituting an action by a next friend or a guardian of an infant, and in so instituting one in behalf of a lunatic or an habitual drunkard, is that in the latter case the action must be brought in the name of the lunatic or habitual drunkard and of the committee or guardian; and in the former it is brought by the next friend or guardian in the name of the infant. See Beale et al. v. Coon, 2 Watts, 183, 184; Steel v. Young, 4 Watts, 459; Uberoth v. The Union National Bank, 9 Phila. 83; Post’s Estate, 19 Dist. R. 61. It is clear, therefore, that the want of interest on the part of Mrs. Blackwell in the claim for compensation presented by her in behalf of her husband did not deprive her of the right to present his claim petition as his next friend.

The second question of law urged by counsel is: “2. Could John Anstock, guardian of Howard Blackwell, be legally substituted as party claimant by amendment after the record was closed and the statute of limitations had run?” This proposition has been argued upon the theory that the claim petition as filed was defective for want of proper parties, and that the substitution on April 18, 1921, more than a year after the claimant’s injury, of John Anstock, the guardian of Howard Blackwell, as the petitioner in place of his wife, Verna Blackwell, acting as his next frined, introduced a new cause of action against the defendant after the limitation fixed by section 815 of the Workmen’s Compensation Act had run in the defendant’s favor. It is true that a new cause of action cannot be introduced by amendment after the limitation has run, no matter what form the amendment may take, and that in some cases the introduction of a new party necessarily results in the introduction of a new cause of action, as in the case of Garman v. Glass, 197 Pa. 101. Where the right person, however, is served under the wrong name, the correct name may be substituted by amendment after the statute has run: Booth v. Dorsey, 202 Pa. 381, 385; Tonge v. Item Publishing Co., 244 Pa. 417, 426; McGinnis v. The Valvoline Oil Works, Lim., 251 Pa. 407, 409; Fitzgerald’s Estate (No. 1), 252 Pa. 568, 572. So, too, the joinder of too many plaintiffs or defendants may be corrected by amendment at any time: Holmes v. Pennsylvania R. R. Co., 220 Pa. 189, 193. And in Wilkinson v. North East Borough, 215 Pa. 486, 491, it was held that the error of the prothonotary in issuing a summons in assumpsit on a praecipe in trespass was amendable after the statute had run. If, therefore, we have erred in reaching the conclusion that Mrs. Blackwell could file a claim petition as the next friend of her husband, it was an error which, in our opinion, could be amended at any time, because the substitution of one or more names as claimants would not in any sense change the cause of action set out in the claim petition. The cause of action is the right of Howard Blackwell to compensation arising from an injury received in the course of his employment by the defendant.

No amendment of the claim petition appears to have been made at any time; hence, the rules of the board respecting such amendments do not seem to have been violated, as is contended by the appellant, nor was the defendant deprived of his right to plead the statute. After the evidence was in, the referee entered an award in favor of John Anstock, guardian of Howard Blackwell. This was an amendment of the record to conform with the evidence then before the referee disclosing the necessary parties to the action, and, in view of the fact that such amendments may be made after judgment where no question of the statute of limitations is involved, it cannot have been error: New York & Pennsylvania Co. v. New York Central R. R. Co., 267 Pa. 64, 76. The next friend, in our opinion, was properly superseded by the guardian, but in accordance with the view previously expressed, the award of the referee should also have been entered in favor of Howard Blackwell in his own name. Therefore, the appeal must be dismissed.

And now, Nov. 7, 1921, appeal dismissed. Judgment is hereby’directed to be entered upon the award of the referee as sustained by the Workmen’s Compensation Board in favor of Howard Blackwell and of John Anstock, guardian of Howard Blackwell, against the Director General of Railroads, United States Railroad Administration, Lehigh Valley Railroad Company, defendant, in the sum of §5000. Prom M. M. Burke, Shenandoah, Pa.