author: Fox, J.,

text:
    Wurts et al. v. Reily.

      Snyder, Miller & Hull, for plaintiffs; John T. Brady, for defendant.
    March 11, 1929.
   Fox, J.,

This matter comes before us upon a bill and answer.

The bill, in substance, avers that the plaintiffs, Elizabeth Wister Wurts, Sarah Logan Wister Starr and Margaret Wister Meigs, are, and at the time of the death of the testatrix became, the owners in fee simple of an undivided one-half interest in two tracts of land, with buildings thereon erected, situate in the City of Harrisburg, being known as Nos. 902 and 904 North Second Street; that plaintiffs, C. Stewart Wurts, James Starr and Edward B. Meigs, are the respective husbands of Elizabeth Wister Wurts, Sarah Logan Wister Starr and Margaret Wister Meigs; that the defendant, Helen Boas Reily, is, and at the time of the death of the testatrix was, the owner in fee simple of the other undivided one-half interest in the said tracts of land; that on or about Feb. 15, 1928, the plaintiffs entered into an agreement in writing with the defendant, whereby the plaintiffs agreed to convey to the defendant their undivided one-half interest in the premises No. 902 North Second Street, Harrisburg, Pa., and the defendant agreed to convey to the plaintiffs her undivided one-half interest in the adjoining premises, No. 904 North Second Street, Harrisburg, Pa., a copy of which agreement is attached to and made a part of the bill of complaint and marked Exhibit “A;” that on or about April 25, 1928, the plaintiffs made tender to the defendant of a deed purporting to convey an undivided one-half interest in No. 902 North Second Street, and requested in exchange from the defendant a deed for an undivided one-half interest in No. 904 North Second Street; that, notwithstanding this tender and request, the defendant has refused to receive the deed tendered by the plaintiffs and to make and deliver to them a deed for an undivided one-half interest in No. 904 North Second Street, the plaintiffs contending that the title tendered by them to the said undivided one-half interest in No. 902 North Second Street is a good and marketable title in fee simple and is such a title as the plaintiffs are called upon to convey by the terms of said agreement. They pray: “(d) That the defendant be required to execute and deliver to the plaintiffs, Elizabeth Wister Wurts, Sarah Logan Wister Starr and Margaret Wister Meigs, a deed in the usual form for an undivided one-half interest in the premises No. 904 North Second Street in exchange for a deed executed by the plaintiffs for their undivided one-half interest in No. 902 North Second Street aforesaid; (b) that the defendant be enjoined during the pendency of these proceedings from conveying, or attempting to convey, her undivided one-half interest in the premises No. 904 North Second Street to any one other than the plaintiffs; (c) for such other and further relief as to your Honorable Court may seem just and proper.”

The answer filed by the defendant, in substance, admits the averments in the bill of complaint, except that it denies that the deed for an undivided one-half interest in property No. 902 North Second Street as tendered by the plaintiffs and refused by defendant was a performance of the obligation of plaintiffs under the said agreement of sale to convey a good and marketable title in fee simple, and because of plaintiffs’ failure to offer a deed conveying a good and marketable title in fee simple for said premises, she, the defendant, refuses to accept the deed tendered by plaintiffs and to give in exchange a deed for her undivided one-half interest in property No. 904 North Second Street; the defendant avers that the title tendered by the plaintiffs to their alleged undivided one-half interest in property No. 902 North Second Street is not a good and marketable title in fee simple, for the reason that Sarah Tyler Wister, mother of the said plaintiffs, Elizabeth Wister Wurts, Sarah Logan Wister Starr and Margaret Wister Meigs, died March 22, 1922, having first made her last will and testament, dated July 12,1903, whereby the said testatrix, after directing the payment of her just debts and funeral expenses and payment of a bequest of $1000 to her niece, Sarah Wister Boas, provided as follows: “The residue or remainder of my estate or property, real and personal, without inventory, I will and bequeath equally divided between my three daughters, Elizabeth Wister Wurts, Sarah Logan Wister Starr and Margaret Wister and to their children. Should either of them die without issue or children, her share shall go to her sisters or sister, share and share alike,” that the plaintiffs, Elizabeth Wister Wurts, Sarah Logan Wister Starr and Margaret Wister Meigs, are the beneficiaries named in the said will of Sarah Tyler Wister, the said Margaret Wister having married Edward B. Meigs after the execution of said will, and that under the said residuary devise, the said Elizabeth Wister Wurts, Sarah Logan Wister Starr and Marr garet Wister Meigs, the plaintiffs, took but a life estate in the said undivided one-half interest in property No. 902 North' Second Street by the will of their mother, the said Sarah Tyler Wister, with remainder over to their children, and that as to such remainder the said plaintiffs cannot convey title in fee simple.

We, therefore, have for our consideration and determination the one question, viz., what estate did the plaintiffs, Elizabeth Wister Wurts, Sarah Logan Wister Starr and Margaret Wister Meigs, take under the residuary clause of their- mother’s will, the residuary including this property?

•It is contended by the defendant that this case is ruled by the case of Chambers v. Union Trust Co., 235 Pa. 610.

The provisions of both wills as to the residue being quite similar, for easy comparison, we shall set side'by side the pertinent provisions of both wills:

Chambers will:
“Item. I give and devise my farm (devised by my father to me) to my nephew, Joseph Barnsley and to his children; but in case he should die without legal issue, then it is to go to the heirs of my father, as directed by the intestate laws of Pennsylvania.”
Wister will:
“The residue or remainder of my estate or property, real and personal, without inventory, I will and bequeath equally divided between my three daughters, Elizabeth Wister Wurts, Sarah Logan Wister Starr and Margaret Wister and to their children. Should either of them die without issue or children, her share shall go to her sisters or sister, share and share alike.”

In the case of Chambers v. Union Trust Co., supra, Mr. Chief Justice Moschzisker, at page 616, said:

“Under the settled decisions of this court, the language employed by the testator, ‘to my nephew and to his children,’ was tantamount to saying ‘to my nephew for life with remainder to his children.’ The only question is, does the use of the phrase ‘in case he should die without legal issue’ make it necessary to construe the prior use of the word ‘children’ as though it were ‘issue,’ which would mean an indefinite failure of issue, thus creating an estate tail and bringing the devise within the Rule in Shelley’s Case? We think not. ‘Children’ is prima fade a word of purchase and not of limitation, and we are convinced that the present testator intended so to use it.
“Moreover, there is no necessity for giving the word an enlarged meaning, for here, under the devise as framed, the estate would vest in the children of the nephew as a class immediately upon any of them coming into existence before his death, and there could, therefore, be no possibility of an exclusion of descendants. As to the phrase ‘without issue,’ there is less reluctance to narrow the prima fade meaning of the word ‘issue’ than of other words; that word may be ‘applied only to children:’ Taylor v. Taylor, 63 Pa. 481, 483. It is an unbending rule that when a fee simple is given in remainder after an estate for life to the children of a first taker, words following containing a limitation over on default of his issue are held not to raise an estate tail by implication. In this class of cases ‘issue’ is construed to mean ‘such issue:’ Curtis v. Longstreth, 44 Pa. 297, 302, 303. ‘It is well settled, also, that words importing a failure of issue without the word ‘such,’ following a devise to children in fee simple or fee tail, refer to the objects of that prior devise and not to the issue at large:’ Daley v. Koons, 90 Pa. 246, 249. The present case falls within these authorities, and the words of the devise, ‘legal issue,’ should have been construed to mean ‘such children’ and to import a definite failure of issue.”

In the case of Whiteley’s Estate, 273 Pa. 364, the Supreme Court, after stating the facts, at page 366, said: “This is the usual case of an estate given in trust for the use of one for life and then over to his children in fee, which we have often held creates but a life estate in the first taker, which is not changed by the provision that if the life-tenant dies without leaving children or issue him surviving, the estate is to vest in other relatives of testator: Daley v. Koons, 90 Pa. 246; Kemp v. Reinhard, 228 Pa. 143; Livezey’s Appeal, 106 Pa. 201.

In the case of Reiff v. Pepo, 290 Pa. 508, the Supreme Court, at page 515, said: “The law finds an intention to give only a life estate under circumstances much less convincing than those here present; for instance, a devise to A and his children is in this State uniformly held to give a life estate to A with remainder to his children: Chambers v. Union Trust Co., 235 Pa. 610, 616.”

We do not see anything in the will under consideration which plainly denotes that the word “children” is not a word of purchase. The words “should either of them die without issue or children her share shall go to her sisters or sister, share and share alike,” it is true, give to the surviving sisters or sister an absolute estate in the respective remainder over of the daughter who had a life estate only, dying without issue or children, a greater estate than given to any of the daughters in the first instance, and it is argued by the learned counsel for plaintiffs that that clearly shows that testatrix intended to give the daughters, who were the first objects of her bounty, fee simple estates in the whole. V/e do not concur in this. As we understood at the argument, children of the daughters, or some of them, were living at the time of the making of the will and at the time of the death of the testatrix, and, under authority of Whiteley’s Estate, supra, which we have quoted, and other authorities, estates for life were created for the daughters and the remainder vested in others, viz., their children subject to be opened and others yet unborn to be let in as remaindermen.

We are of the opinion that the authorities above cited, and particularly that of Chambers v. Union Trust Co., supra, are so conclusive that we cannot release ourselves from them.

Wherefore, we are of the opinion that the plaintiffs, Elizabeth Wister Wurts, Sarah Logan Wister Starr and Margaret Wister Meigs, at the death of their mother, Sarah Tyler Wister, by her last will and testament, took life estates in the real estate of their mother with remainder in fee over to their children, unaffected by the subsequent language of the will, and that the prayer of the petitioners should be refused and the bill dismissed.

And now, March 11, 1929, upon due consideration, it is hereby ordered, adjudged and decreed as follows: That the prayer of the petitioners is refused and the bill is dismissed, at the cost of the plaintiffs.

From Homer L. Kreider, Harrisburg, Pa.


source: Caselaw Access Project

author: Hicks, J.,

license: Public Domain

text:
    Commonwealth v. Zavaglia.

      C. A. Snyder, District Attorney (with him B. A. Freiler and James J. Gallagher, his assistants), for Commonwealth.

      Cyrus M. Palmer and M. M. Burke, for defendant.
    June 17, 1929.
   Hicks, J.,

On March 9, 1929, the court charged the grand jury, then engaged in the March Sessions, with the duty of investigating the circumstances and conditions surrounding the escape from the Schuylkill County prison of Elverez Miquel, a condemned murderer. On March 21, 1929, the grand jury reported to the court the result of its investigations, and presented for indictment the defendant, Dominick Zavaglia, and recommended to the court that the district attorney be directed to prepare and present bills of indictment to the grand jury against the said defendant, among others, covering the alleged criminal conduct fully set forth in said report. The court, upon motion of the district attorney, who had prepared a bill of indictment in conformity to the report of the grand jury and in pursuance thereof, directed the submission of a bill of indictment against the defendant to the same grand jury. Upon the bill of indictment, the court made the following order: “And now, March 21, 1929, upon report made by the Grand Inquest of the March Sessions, specially directed by the court to investigate and report to the Court on the escape of Alverez Miquel, a prisoner lawfully committed to the Schuylkill County Prison, it is ordered and directed that the within bill of indictment be submitted to the Grand Inquest at the March Sessions, 1929.” On the back of the bill of indictment was endorsed the words:' “By the Court . . . prosecutor.” Later on the same day, the grand jury returned a true bill against the defendant.

It was conceded, both in written and oral arguments by the district attorney and counsel for the defendant, that the presentment was based upon the testimony of witnesses heard by the grand, jury, and sworn by its foreman; also, that no witnesses were called before the grand jury to support the bill of indictment, that names of witnesses were not written upon it, and that the indictment was found and based upon the presentment, by the same grand jury which had made the investigation.

The reasons upon which the defendant relies to quash the bill of indictment are as follows: (1) No prosecutor’s name is endorsed on the said bill of indictment; (2) no names of any witnesses examined to sustain it are endorsed on said bill of indictment; (3) the presentment from which the indictment was found was not made according to law, in that no witnesses were legally sworn before giving their testimony, upon which testimony the grand jury made the said presentment.

(1) The first reason, that no prosecutor’s name is endorsed on the indictment, is wholly without merit. This indictment was submitted to the grand jury by the district attorney, with the approval of the court, in pursuance of an investigation made by the grand jury at the, request of the court. There was no prosecutor and, therefore, the name could not be endorsed thereon. It is sufficient to refer to section 27 of the Act of March 31, 1860, P. L. 487, which provides: “No person shall be required to answer to any indictment or any offense whatever, unless the prosecutor’s name, if any there be, is endorsed thereon; and if no person shall avow himself the prosecutor, the court may hear witnesses and determine whether there is such a private prosecutor, and if they shall be of opinion that there is such a prosecutor, then direct his name to be endorsed on such indictment.” This section is taken from one of the clauses of the Act of 1705, 1 Sm. Laws, 56. The old law has been so amended as to enable the court to determine the question, in any case, whether there is such a prosecutor, and who he is, and, if any, to order his name to be endorsed on the indictment. If there be no' proof of a prosecutor, the defendant must plead without such endorsement: Rex v. Lukens, 1 Dall. 5 (1762). See, also, Com. v. Bethlehem Borough, 15 Pa. Superior Ct. 158, 164; Com. v. Hurd, 177 Pa. 481; McCullough v. Com., 67 Pa. 30; Com. v. Green, 126 Pa. 531.

(2 and 3) The second and third reasons will be considered together. The basis of these reasons is the fact that witnesses who appeared before the grand jury during its investigation were sworn by the foreman of the grand jury and not in open court by a judge.

It is urged by the defendant, since the names of the witnesses do not appear upon the indictment, that no member of the jury could administer the oath to the witnesses appearing before it, and, therefore, not having been legally sworn, the presentment, as the foundation of the bill of indictment, was found upon incompetent testimony or no testimony at all recognizable in the law, and that, therefore, the indictment must be quashed. This contention is based upon the provisions of section 10 of the Act of March 31, 1860, P. L. 427, which is as follows:. “The foreman of any grand jury, or any member thereof, is hereby authorized and empowered to administer the requisite oaths or affirmations to any witness whose name may be marked by the district attorney on the bill of indictment.” The defendant contends that no member of the grand jury has any authority to administer an oath except to a witness whose name is marked upon the bill of indictment, and, therefore, the witnesses not having been sworn in open court, the indictment should be quashed. This exact question has never been decided by any of our appellate courts, although there are a number of county court eases in point, but which are not in harmony in the conclusions reached.

For cases sustaining the view that if a witness whose name is not marked on the bill of indictment, and who was not sworn before the court, testifies before the grand jury, the indictment will be quashed, see Com. v. Wilson, 9 Pa. C. C. Reps. 24; Com. v. Tomli, 21 Dist. R. 1016; and Com. v. Bayley, 18 Dist. R. 909. In the case of Com. v. Wilson, supra, President Judge Rice, of the Superior Court, wrote the opinion when he was President Judge of the Quarter Sessions Court of Luzerne County in 1889. We refer to this case particularly because we desire to refer to two other opinions of this same judge when he was a member of the Superior Court. In this case, a witness’s name was not marked on the bill of indictment and he was sworn by the foreman of the grand jury before delivering his testimony. President Judge Rice, in holding that if a witness whose name is not marked on the bill, and who was not sworn before the court, testifies before the grand jury, the indictment will be quashed, referred to the 10th section of the Act of March 31, 1860, P. L. 427, and then added: “We may assume, from what was said on the argument, that the witness was sworn by the foreman or some member of the grand jury, but if the grand jury had no authority to administer the oath, their action was as irregular as if they had examined witnesses without swearing them, which has been held sufficient ground for quashing the indictment. See Com. v. Leisenring, 2 Pears. 466, and cases cited. In the case of Com. v. Morrison, No. 48, April Sessions, 1883, Judge Woodward quashed the indictment for precisely the same reason as assigned in this case. Judge Sittser made the same ruling in Com. v. Price, 3 Pa. C. C. Reps. 175.” He thus interpreted the Act of 1860, § 10, supra, as restricting the authority of members of the grand jury to swear witnesses appearing before them to those whose names appeared upon the bill of indictment.

The defendant also relies upon the case of Com. v. Edmiston, 30 Pa. Superior Ct. 54, as supporting the view just referred to. In that case, the defendants were charged in a bill of indictment with violations of the Act of March 31, 1860, P. L. 382, relative to gambling, and a motion to quash the indictment, which was denied, upon the ground that a witness whose name was not marked on the back of the indictment was called before the grand jury and sworn by the foreman, was the single matter assigned for error in the higher court. President Judge Rice, of the Superior Court, in passing upon the motion to quash, stated that “to warrant us in reversing the actio» of the court below, it ought to be made to appear affirmatively, or by necessary implication, not only that the indictment was found a true bill upon the testimony of a witness whose name was not endorsed thereon, but that he was not sworn before the court.” Then, after explaining that an examination of the bill of exceptions showed that this latter fact was not expressly stated and was not necessarily to be implied from what was stated, the lower court was affirmed. And it is interesting to record the last two sentences of the opinion, in this connection, as follows: “For while we may surmise that the witness was not sworn before the court, yet we can do no more than surmise that fact from this record. The defendants, in view of all the circumstances to which, we have alluded at the outset of this opinion, are not in a position to demand! that we go outside the record, even if we had discretionary power to do so, which we have not.” The opinion does not squarely decide the point and cannot be considered as authority either way in this case.

We are also referred by the defendant to the case of Com. v. Morris et al., 91 Pa. Superior Ct. 571, as supporting his contention. In that case, the defendants were indicted for conspiracy and were convicted. A motion to quash the indictment was made in the lower court, which was denied. In passing upon the denial of the motion to quash in the higher court, on page 574, the Superior Court declared that: “Manifestly, the gravamen of the complaint is that the testimony of the witnesses whose names were endorsed upon the bill did not support the averments therein.” It then stated the question for decision to be: “Whether a defendant has the right to allege, and attempt to prove, that the testimony given before a grand jury by witnesses legally competent to testify, whose names were duly endorsed upon the bill, was insufficient to make out a prima facie case.” This was the only point for decision in the higher court, as far as the motion to quash the indictment was concerned. But the Superior Court, in making a comprehensive statement of reasons for which an indictment may be quashed in this State, inter alia, stated: “Where the only witnesses who appeared before them (grand jury) were persons whose names were not endorsed upon the bill, and, therefore, could not be sworn by the grand jury: Act of March 31, 1860, P. L. 427.” The only authority quoted to sustain this statement is the act of assembly, no case construing it, and it not being pertinent to the matter for decision, must be considered purely dictum and not decisional.

Notwithstanding his decision in the Quarter Sessions on this point in the case of Com. v. Wilson, supra, as President Judge of the Superior Court, in Com. v. Neri Dietrich, 7 Pa. Superior Ct. 515, on page 520, declaring for the court the propriety of the criminal courts directing investigations by grand juries, and quoting from Judge King in Lloyd’s Case, 3 Clark, 188, he interpolated parenthetically the quotation as follows: “In such cases, the court may properly, in aid of inquiries directed by them, summon, swear (the oath may now be administered by the foreman of the grand jury) and send before the grand jury such witnesses as they may deem necessary to a full investigation of the evils intimated, in order to enable the grand jury to present the offense and offender.” The exact language with his identical parenthetic words was again used by him in the case of Com. v. Klein, 40 Pa. Superior Ct. 352, on page 357, notwithstanding his language in Com. v. Edmiston, supra. Of course, what President Judge Rice stated was dictum, because the precise question was not involved in either Com. v. Dietrich, supra, or Com. v. Klein, supra, but it is at least an expression of his individual opinion that in grand jury investigations directed by the court the foreman may swear the witnesses.

Two very elaborate and well-reasoned opinions of Quarter Sessions courts are extant, upholding the contention of the Commonwealth in this case to the effect that the foreman or a member of the grand jury, in all cases of investigations pursuant to order of court, has the right to administer oaths to witnesses appearing before the grand jury.

The precise question raised in this case as to the method of swearing witnesses was decided by President Judge Swearingen, of Allegheny County, in 1910, in the case of Com. v. Hoffstot, 58 Pitts. L. J. 379, adversely to the contention of the defendant. In that case, the defendant was indicted for conspiracy, and a motion was made to quash the indictment on the ground, inter alia, that “witnesses were called and testified before the grand jury which found the indictment whose names are not marked upon the indictment.”

This is exactly what happened in the ease at bar. Judge Swearingen says (page 382):

“It is urged that the witnesses before the grand jury were not legally sworn, because the foreman had no power to administer the oath to them, and because, after the presentment, they were not resworn when the indictment was found.
“Prior to the Act approved April 5, 1826, P. L. 204, witnesses who testified before a grand jury were sworn in open court, as at common law. Then said statute was enacted. It is entitled ‘An act to enable grand jurors to administer oaths or affirmations to witnesses,’ and it provides that:
“ ‘The foreman of a grand jury, or any member thereof, be and they are hereby authorized and empowered to administer the requisite oaths or affirmations to any witness or witnesses whose names may be marked by the Attorney-General on the bills of indictment.’
“This statute was substantially re-enacted in the Code of Criminal Procedure, and it is found in the 10th section of the Act approved March 31, 1860, P. L. 427, which is as follows:
“ ‘The foreman of any grand jury, or any member thereof, is hereby authorized and empowered to administer the requisite oaths or affirmations to any witness whose name may be marked by the district attorney on the bill of indictment.’
“Does this statute mean that a grand juror has.no power to administer oaths or affirmations to any witness except those whose names the district attorney shall have marked upon technical indictments — such as have been drawn on informations previously made before magistrates — as contended by the defendant? Or does the statute mean that a grand juror has power to administer oaths or affirmations to any witnesses lawfully brought before the grand jury in any lawful investigation then pending before it, as contended by the Commonwealth? . . .
“There can be no doubt that the grant of power contained in the legislation aforesaid is ample to sustain the contention of the Commonwealth. It enables the grand jurors to administer oaths to witnesses — not merely to some witnesses, but to all witnesses. This proposition is supported by the title of the Act of 1826, to which we may look, although it is no part of the act itself. Is the power thus granted restricted- by the last clause of the statute, to wit, ‘whose names may be endorsed,’ etc., or is that clause to be interpreted as directory to the district attorney?
“The Act of 1826 was an enabling act. There were sound reasons for making the changes in the manner of administering oaths to witnesses who were to appear before the grand jury. The purpose was to avoid the necessity of interrupting the proceedings of the courts while such witnesses were being sworn. Of course, if the court were not actually sitting, the witnesses could not be sworn at all. Thus confusion and delay resulted in the public business. Besides, witnesses could not be sworn in the presence of the grand jury. How, then, could it know whether or not all witnesses had been actually sworn? Thus the grand jury might often act upon unsworn testimony. In an important county like Allegheny, the confusion, delay and uncertainty just enumerated might frequently be very serious. Hence, this statute was enacted. This intent was to confer a power upon grand jurors in order to remedy a mischief, and the statute ought to be construed so as to effectuate that intent.
“If the defendant’s construction of this statute prevail, we are unable to see how the mischief, which it was the intention to remedy, will be avoided. At common law, it was not necessary that the names of witnesses who appeared before a grand jury should be endorsed upon an indictment. . . . Certainly the legislation under consideration does not require such endorsement. Neither does any other statute to which our attention has been called. Hence, the names of witnesses are not required to be marked upon an indictment at all. If this be true, then it is discretionary with the district attorney whether or not he will mark any or all the names on an indictment; and the witnesses to an ordinary indictment must in some instances still be sworn in ■open court, and likewise all witnesses in other investigations by the grand jury. Grand jurors are not learned in the law. They cannot determine when the power conferred by the statute could or could not be exercised. Thus the same confusion, delay and uncertainty would result as the said legislation sought to avoid. It .is hardly reasonable to suppose that the legislature undertook to cure a mischief, by granting a power, and then, by a limitation or restriction of the grant, preserved the very mischief it had undertaken to suppress. Plain language is necessary to accomplish that result. Yet, such is the result if the court is still required to be interrupted and delayed while some witnesses who are to go before the grand jury are being sworn. Considering, therefore, the old law, the mischief and the remedy, it seems to us that the power to administer oaths, conferred upon grand jurors by the statute, was not intended to be restricted in the manner claimed by the defendant.
“The clause of the statute under consideration is relative in form. Such a clause may be either restrictive, that is, used to define some word in the principal clause, or it may be non-restrictive, that is, used to add some thought to the principal one already expressed. Usually the test is, can the words ‘and it’ or ‘and their’ be substituted for the relative pronoun? If so, the clause is non-restrictive. Applying that test to this statute, the substitution can be made, and it would then read ‘. . . to witnesses and their names may be endorsed,’ etc. Clearly this would be non-restrictive of the grant of power in the principal clause of the statute. Besides, the words ‘may be’ are used— not ‘must be’ or ‘shall have been.’ The word ‘may’ usually imports permission, not obligation. There is nothing in this statute which indicates that the word ‘may’ was intended to have any other than its ordinary meaning. And so this construction indicates that the clause of the statute aforesaid is not restrictive of the authority to grand jurors therein previously granted. . . .
“In this case, the grand jury was, under order of court, lawfully engaged in an investigation of subjects of great public moment. Witnesses were lawfully called before it in aid of that investigation. We have just held that they were all lawfully sworn. Thereupon the grand jury returned a presentment to the court, and upon that the court directed the district attorney to lay an indictment before the grand jury, which was done the same day. What was the necessity of again calling the same witnesses, again administering the oath to them, and again having them testify to the same effect as they had already done? . . .”

The exact question was also raised and decided favorably to the Commonwealth in the case of Com. v. Kenehan et al., 12 D. & C. 585, 30 Lacka. Jur. 58, in an elaborate opinion of twenty-seven pages by Judge Maxey, exhibiting much research, in which he reviews the common law, canvasses decisions of the English and American courts, as well as text-books, and consults the practice followed in the courts of this State in the matter of swearing witnesses appearing before grand juries. He refers to the practice of the foreman of the grand jury swearing all witnesses appearing before it in all proceedings as being followed in the Counties of Philadelphia, Allegheny, Luzerne and Lackawanna, and states that he has no knowledge of any county in which it is not followed. Schuylkill County has also followed this practice, as far as the writer is informed.

As a result of his research of the pertinent law, he reached the following conclusions:

“Our conclusion on this branch of the case is that under the Act of March 81, 1860, P. L. 427, as interpreted by the courts of Pennsylvania, the foreman or a member of the grand jury, in all eases of. investigation pursuant to order of court, as in all other cases, has the right to administer oaths to witnesses appearing before the grand jury.
“Our conclusion is, further, that, regardless of the Act of 1860, the foreman of the grand jury has the right to administer oaths to witnesses appearing before the grand jury upon investigations as in all other cases, this right being based upon immemorial custom so long acquiesced in by the various Courts of Quarter Sessions and Oyer and Terminer of Pennsylvania as to become a part of the common law of Pennsylvania.
“Our conclusion is, further, that, even if the right of the foreman to swear witnesses appearing before the grand jury upon investigations were doubtful, as we now expressly hold that it is not, the swearing of witnesses by the foreman would not constitute such an irregularity as at law would justify us in quashing these indictments, for, according to the prescriptions of the very common law which the defendants invoke, an incorrect method of swearing witnesses before the grand jury would not vitiate an indictment founded upon the testimony of such incorrectly sworn witnesses.”

We are constrained to adopt the conclusions of President Judge Swearingen in Com. v. Hoffstof, supra, and Judge Maxey in Com. v. Kenehan et al., supra, as well as the apparent custom in Pennsylvania, and, therefore, deny the motion to quash.

The motion to quash the bill of indictment is denied.


author: Stewart, P. J.,

text:
    Hilliard v. Delaware, Lackawanna & Western R. R. Co.

      Robert E. James, for complainant.

      Kirkpatrick, Maxwell & Chidsey, for defendant.
    Dec. 10, 1928.
   Stewart, P. J.,

Complainant’s bill alleges that he is the owner of two acres of land in the village of Martin’s Creek, through which a single track of the defendant runs, and across which track there ran a public highway at grade; that, by order of the Public Service Commission, dated Dec. 15, 1925, the said public highway was changed so that the same was carried over the said railroad track by a bridge and viaduct located on the land of complainant, but at a considerable distance from the above grade crossing and at a great height above the level thereof, the construction of which viaduct greatly raised the level of said highway at the western end of said viaduct above its original level. He also avers that said grade crossing was ordered abolished and barricaded, but the public highway which led to the crossing was not vacated; that he conducts a retail coal business and sand and gravel business on the land; that on the western section of his property, as bisected by the railroad, he has buildings which are on level ground; that the eastern section of his land was used for the storage of coal; that there was no way of crossing with vehicles from the eastern to the western section of his land except by the barricaded crossing; that access to the relocated public highway is by means of a road which has a grade of over 11 per cent.; that it is impossible for complainant to use it “for the hauling of necessarily heavy loads of coal, sand and gravel under certain weather conditions and at no time with safety and profit.” He also avers that he requested defendant to make a good and sufficient causeway which would enable him to cross over said railroad track with wagons, carts and other vehicles, and that defendant has refused to make the construction. His prayer is that the defendant be compelled to make a crossing over the track from the east side to the west side, and that defendant may be compelled' to grant the complainant a right of way and perpetual easement across the defendant’s tracks. Complainant does not ask for the payment of any damages. The defendant company demurs to the bill for the following reasons:

1. That it sets forth no cause of action.

2. That complainant is not entitled to relief in equity.

3. That under the Public Service Commission Act of the General Assembly, approved July 26, 1913, P. L. 1374, and particularly section 12 of article v and clause T, section 1 of article II thereof, the Public Service Commission of Pennsylvania has exclusive jurisdiction to establish, alter, relocate, remove, or abolish grade crossings, and the defendant, as' a public service company, is required to obey and abide by all lawful orders thereof.

5. That if the complainant has sustained any damages by reason of the abolishment and relocation of Hutchison’s Crossing, he has a full, complete and adequate remedy at law to recover said damages under article v, section 12, of the Act of 1913, its supplements and amendments.

6. That neither section 12 nor any other section of the Act of Assembly approved Feb. 19, 1849, P. L. 79, applies to the facts as alleged in the bill of complaint, and this court is without jurisdiction to grant the relief prayed for in said bill.

The bill does not aver the date when the defendant constructed its railroad. We know that it has been there at least twenty-five years. Neither does the bill aver when it was that the complainant asked the defendant to construct the causeway, but it will be admitted that it was after the new viaduct had been completed in pursuance of the order of the Public Service Commission of Dec. 15, 1925. That is to say, for all these years complainant has used the public highway crossing known as Hutchison’s Crossing up until the Public Service Commission for the public good relocated the same public road on complainant’s land and erected a “Barricade” at the crossing. The defendant company, it will be perceived, has done absolutely nothing in this matter. It would seem to us that the easiest way to solve this difficulty would be to obtain an order from the Public Service Commission allowing the old crossing to be used by the complainant, and, if necessary, placing the “Barricade” at the limits of his property. However, that matter is only by way of suggestion. The complainant in his bill claims that he is entitled to this crossing by reason of the 12th section of the Act of Feb. 19, 1849, P. L. 79. The section is as follows: “Whenever, in the construction of such road or roads, it shall be necessary to cross or intersect any established road or way, it shall be the duty of the president and directors of the said company so to construct the said road across such established road or way as not to impede the passage or transportation of persons or property along the same; and, for the accommodation of all persons owning or possessing land through which the said railroad may pass, it shall be the duty of such company to make, or cause to be made, a good and sufficient causeway or causeways whenever the same may be necessary to enable the occupant or occupants of said land to cross or pass over the same with wagons, carts and implements of husbandry as occasion may require; and the said causeway or causeways, when so made, shall be maintained and kept in good repair by such company; and if the said company shall neglect or refuse, on request, to make such causeway or causeways or, when made, to keep the same in good order, the said company shall be liable to pay any person aggrieved thereby, all damages sustained by such person in consequence of such neglect or refusal; such damages to be assessed and ascertained in the same manner as provided in the last section for the assessment of damages: Provided, that the said company shall in no case be required to make, or cause to be made, more than one causeway through each plantation or lot of land for the accommodation of any one person owning or possessing land through which the said railroad may pass; and where any public road shall cross such railroad, the person owning or possessing land through which the said public road may pass shall not be entitled to require the company to erect or keep in repair any causeway or bridge for the accommodation of the occupant of said land.” It will be noticed that that section applies to the construction of a railroad. It is questionable whether a bill in equity would lie after the lapse of so many years, and acquiescence by the complainant in the use of a public road which it is admitted gave him the very best kind of a crossing. See Dimmick v. D., L. & W. R. R. Co., 180 Pa. 468, and Green v. B. & O. R. R. Co., 245 Pa. 35. But did the act ever apply to this case? The proviso is that where a public road crosses a railroad, the person owning the land through which the public road passes is not entitled to a causeway. The land owner must use the public road. The Act of 1849, at the time of the railroad’s construction and for all these years, has never applied to the present case. The argument of the learned counsel for the complainant is, as we understand it, “that the crossing of- the public highway and the railroad be regarded in its true aspect as a dual arrangement. 1. As a purely highway crossing. 2. As plaintiff’s private crossing.

“When the public crossing was barricaded, the effect was that plaintiff’s private crossing was barricaded; The right of the Public Service Commission to order the public highway crossing barricaded is beyond question, but the right of the Public Service Commission to interfere with, obstruct or barricade a private crossing is questioned. If the Public Service Commission has no jurisdiction over private crossings, it necessarily follows that they have no right to obstruct such a crossing.” The learned counsel in support of his position cites the Green Case, supra. In that case the railroad company had condemned plaintiff’s land and had constructed a farm crossing. It was used by plaintiff and his predecessors in time for seventeen years. When the railroad company, for purposes of its own, removed the crossing and refused to rebuild it, the railroad company conceded plaintiff’s right to the crossing; conceded that it was liable to damages, but denied that it could be compelled to restore the crossing. Mr. Justice Stewart, on page 39, said: “The right of these plaintiffs in the crossing was the gift of the State, and no power but that of the State could deprive them of it. The State had delegated to the defendant company its power in this regard, to be exercised only, however, in the way prescribed. By the 9th section of the Act of June 7, 1901, P. L. 531, the power is given to railroad companies to discontinue and remove private crossings under prescribed conditions; but tbe removal and discontinuance of the plaintiffs’ crossing was not affected pursuant to any law or agreeably to any established or pretended right.” The learned Justice concedes that the plaintiffs’ right could be taken away by proceedings under the Act of 1901. That is to say, it was not so vested that it could not be divested by the State acting under that act. In- the present case the State acted through the Public Service Commission, under the Act of 1913, in improving the public highway, and incidentally took away that which had exempted the railroad company from any obligation to make a causeway when it built its road. That action of the Public Service Commission cannot now, after the lapse of so many years, create a condition which would bring the defendant company within the provisions of the Act of 18491. We have examined the case of Williams v. D., L. & W. R. R. Co., 255 Pa. 133, and the other eases cited, but, in our judgment, they throw little light on the present question. All that we now decide is that the complainant is not entitled to a remedy in equity under the Act of 1849. Whether the railroad company is liable to the complainant in an action at law or whether he can be compensated under the Public Service Act is not before us.

And now, Dec. 10, 1928, this cause came on to be heard at this term upon defendant’s demurrer, and upon consideration thereof it is ordered, adjudged and decreed that all the causes of defendant’s demurrer quoted above be allowed and that complainant’s bill be dismissed, with costs.

The prothonotary will enter this decree nisi and give notice of same to parties or their counsel, and if no exceptions are filed within ten days, this decree shall be entered by him as a final decree.

From Henry D. Maxwell, Easton, Pa.


author: Jones, J.,

text:
    Trustees’ Petition.

      R. H. Wadhams, for petitioner; C. B. Waller, contra.
    Jan. 22, 1929.
   Jones, J.,

The Wilkes-Barre Armory Association, a body corporate, on July 5, 1892, conveyed a tract of land on the westerly side of Main Street, in the City of Wilkes-Barre, upon which was erected the Wilkes-Barre Armory, to five trustees “in trust, nevertheless for the use, benefit and behoof of the military companies, organizations and headquarters, located in the City of Wilkes-Barre aforesaid, attached to the National Guard of the State of Pennsylvania and under the control of said State.” The deed contained the further provisions:

“In case of continued non-user of the property aforesaid, by reason of the non-existence of a militia or National Guard under the control of said State, or by reason of there being no military company, organization or headquarters attached to the militia or National Guard of the State as aforesaid, located in the City of Wilkes-Barre: then and in such case the property aforesaid shall be turned over to or be disposed of for the benefit of the Wilkes-Barre City Hospital and the Home for Friendless Children, in the Borough (now city) of Wilkes-Barre, in the County of Luzerne, both situate in the City of Wilkes-Barre aforesaid, for a nominal consideration.
“In case of the non-user as aforesaid, the trustees shall, before turning over the properties to the said charitable organizations as aforesaid, delay such action for a reasonable length of time thereafter, to wit, until they shall have sufficient reason to believe the said property will not again be used by any military company, organization or headquarters located in said City of Wilkes-Barre, attached to the militia or National Guard of the State aforesaid.”

On Nov. 20, 1928, the trustees of the Armory Association, of the General Hospital and the Home for Friendless Children petitioned the court for a declaratory judgment declaring the powers and duties of the trustees under the trust deed, and the following facts are agreed upon:

1. That the military companies, organizations and headquarters located in the City of Wilkes-Barre are at present the 109th Field Artillery, P. N. G., the headquarters of the 53rd Artillery Brigade, P. N. G., and Ambulance Company 107 of the 103rd Medical Regiment, P. N. G.

2. That the military companies, organizations and headquarters located in the City of Wilkes-Barre and attached to the National Guard of the State of Pennsylvania and under control of said State have abandoned and terminated the use of the property described in the trust deed, and they now use the new armory erected for their use and located on the opposite side of the Susquehanna River from Wilkes-Barre, adjoining Kirby Park.

3. That resolutions were passed at a meeting of the field officers of the regiment and battalion headquarters .of the Wilkes-Barre units of the 109th Field Artillery, the Commanding General of the 53rd Field Artillery Brigade and commanding officer of Ambulance Company 107 of the 103rd Medical Regiment, informing the trustees that the use of the armory by their organizations has terminated and consenting to the transfer of the property to the Wilkes-Barre City Hospital and the Home for Friendless Children, as provided in the trust deed.

4. That notice of the present petition was given by public advertisement in the Luzerne Legal Register and the Wilkes-Barre Times-Leader, and at the time therein fixed there was no objection or protest to said conveyance.

Discussion.

It has been decided many times, by cases too numerous to mention, that a conveyance of land to trustees for a charitable use does not create a conditional estate, but only a trust for the charitable use, not liable to be defeated by non-user or alienation in the absence of an express condition. A list of those cases may be found in Sellers Church’s Petition, 139 Pa. 61.

In the present deed it is clear that the trust was for the purpose of providing a meeting place for the military organizations of the character described therein and limited to the organizations located in the City of Wilkes-Barre; it was not an absolute grant, but simply “for the use, benefit and behoof” of these companies and organizations and so long as they continue to use the property.

It is conceded that there is a non-user of the property and that it has continued for a period of more than two years and will continue indefinitely, due to the erection of a new armory.

The only provision in the deed doubtful of the right to make a conveyance of the property is the provision which declares that “in case of a continued non-user ... by reason of the non-existence of a militia or National Guard under the control of the State, or by reason of there being no military companies, organizations or headquarters . . . located in the City of Wilkes-Barre.”

It is suggested that this language indicates a “non-user” by non-existence or non-location of the military organizations within the City of Wilkes-Barre; if that were true, the trust deed could have said so in plain language.

This deed contemplates a “use” of the property; it provides that in case of “non-user,” the trustees, before turning over the properties to the charitable organizations named, shall delay action for a reasonable length of time until they have sufficient reason to believe the property will not again be used by any military organization; it was not intended that the property should lie idle and its use be subject to the whim or fancy of the organizations named.

The general rule is that the language of a deed should be interpreted in the light of the apparent object or, purpose of the parties and of the conditions existing when made: Rabinowitz v. Rosen et al., 269 Pa. 482.

This trust contemplates a use of the property and the deed provides specifically for a termination of the trust for non-user.

It is a familiar principle of law that a conveyance of the legal estate by a trustee may be demanded when the purpose of the trust has ceased, or when all the parties for whose protection it was intended, being sui juris and under no disability, unite in asking for it: Snyder’s Estate, 17 Dist. R. 270.

Here we have a renouncement by the beneficiary of the trust; that they no longer desire the use of the property; that they have abandoned it; therefore, there is no longer any reason for its continuance.

In Stafford’s Estate, 258 Pa. 595, the rule is established that “no matter what may be the nominal duration of an estate given to a trustee, it continues in equity no longer than the thing sought to be secured by the trust demands; and when that demand has been fully satisfied, 'although the trust may not have ceased by expiration of time,’ . . . yet if all the parties who are, or who may be, interested in the trust property are in existence and are sui juris, and if they all consent and agree thereto, courts of equity may decree the termination of the trust.”

To repeat, the main purpose of this trust is to provide for the use of the land by these military organizations, with a clause of. defeasance in case of non-user, and the legal estate of the trustees can endure no longer than the use it was designed to protect.

The military organizations, the eestuis que trusient under the deed, are emphatic in their statements that the building will not again be used for the purposes specified therein and request and consent to a termination and conveyance of the trust property as stipulated in the deed.

Why, then, should the trust be continued after its exigencies have been met?

In Beaver Township School District v. Burdick, 51 Pa. Superior Ct. 496, the instrument leased to Beaver school, or to the directors of Beaver Township, a certain piece of land containing one-third of an acre “for school purposes so long as it shall be used for school purposes, and the directors are to hold it as such and their successors in office as long as it shall be used for school purposes, after which this shall be null and void.” President Judge Rice, speaking for the court, said: “The broad statement that a conveyance of land to trustees for a charitable use is not liable to be defeated by non-user is to be taken with a qualification, depending on the nature of the conveyance, its limitation of the estate or interest conveyed and its limitation of the use intended to be protected by it,” holding that a grantee of the owner may, thirty-seven years thereafter, successfully defend an action of ejectment brought by the school district to recover possession of the land, where it appears that the lot had been used for school purposes for twenty-nine years when the school-house erected thereon ceased to be used on account of “insufficient number of scholars,” and subsequently the owner and his family moved into it and occupied the premises.

Non-user of this land was the thing which the parties had in view in fixing the limit beyond which the estate should not endure. The grantors foresaw that such an exigency might arise, and, therefore, in the event of a non-user by the recipient of the benefits, limited the estate and provided that the property should be conveyed to the two charitable institutions therein named.

We adjudge and decree that the trust in said deed has ceased and that it is within the power and it is the duty of the trustees of said property to transfer the same to the Wilkes-Barre General Hospital and the Home for Friendless Children of the City of Wilkes-Barre, in equal shares, as provided in said trust deed.

Prom Prank P. Slattery, Wilkes-Barre, Pa.


author: Macfariane, J.,

text:
    Barto v. McKeesport.

      R. A. Hitchens, for plaintiff.

      Harry M. Jones, City Solicitor, for defendant.
    Jan. 8, 1929.
   Macfariane, J.,

The affidavit of defense raises the question of law that the statement does not show a legal cause of action.

It is that the defendant maintained a playground or swimming pool in the city, located near the river, made of concrete, deep in places, and at one end nearest the river the water was drained at different times from the pool into the river through a large pipe in which there was a valve not covered or screened. That the city maintained guards for the protection of children and others swimming in the pool. On Aug. 2, 1928, the plaintiff’s minor son was swimming in the pool when the guards of the city, without any warning, opened the valves and were draining the pool, the boy dove into the pool and was sucked into the pipe and drowned.

The position of counsel for the defendant is that it is not liable, for the reason that in locating and maintaining the public swimming pool it was performing a public or governmental function.

The Act of July 8, 1919, P. L. 784 (Third Class City Law, § 892, page 525), places swimming pools in the same class as playgrounds, playfields, gymnasiums and public baths. The liability of a municipality for negligence in its public parks is settled: Barthold v. Philadelphia, 154 Pa. 109; Ankenbrand v. Philadelphia, 52 Pa. Superior Ct. 581; Novak v. Ford City Borough, 292 Pa. 537; Glase v. Philadelphia, 169 Pa. 488 (a manhole on the roof of the waterworks), and Weber v. Harrisburg, 216 Pa. 117 (a cable across a path in a park). We permitted a recovery against the city for injury caused by a decayed grandstand in a park: Daum v. Pittsburgh, 65 Pitts. L. J. 547. In Mullen v. Pittsburgh, No. 1083, January Term, 1920, a girl was drowned in a sand hole in the river outside of the place set aside by the city for bathing purposes. The authority of the city under the Act of March 7, 1901, art. xix, § 3, cl. 23, P. L. 42, was: “To regulate the time and place of bathing in the rivers and other public waters in and adjoining said city.” It was held in an opinion by Judge Reid that this was a governmental function. The controlling ground was that the cause of the drowning was outside the limits.

The power of Pittsburgh was merely to regulate the place, McKeesport built a pool which was made dangerous by the act of its employee. We see no difference between a permanent water-hole in the Barthold case, the live electric wire in the Novak case and the suddenly created trap in the case before us.

Judge Reid said of cases holding cities liable: “They rest upon the principle that the municipality was responsible for failure to keep park structures, amusement appliances or public walks or ways in parks or city streets in a reasonably safe condition, and, therefore, they are in accord with the general obligation to maintain such places in such a way as not to imperil the public which is invited to make use of them.”

Jan. 8,1929, the question of law raised by defendant is overruled, with leave to file affidavit of defense.

Prom William J. Aiken, Pittsburgh, Pa.


author: Coughlin, J.,

text:
    Fekete v. The Glen Alden Coal Company.

      David Rosenthal, for claimant; Elmer D. Adair, for defendant.
    March 18, 1929.
   Coughlin, J.,

This matter comes before us on an appeal from the decision of the Workmen’s Compensation Board, dismissing appeal from decision of the referee disallowing compensation. Defendant moves to quash the appeal, averring that claimant neglected and failed to serve upon defendant written notice of appeal, setting forth the date thereof and the court in which same was filed; and averring, further, that claimant neglected and failed to serve on defendant a copy of the exceptions to the action of the board, as provided for in section 427 of the Workmen’s Compensation Act, as amended by the Act of June 26, 1919, P. L. 642. Counsel for claimant avers that he was under the impression that notice had been given by the prothonotary. It does not appear that defendant was not aware of the court to which the appeal was taken, or that defendant did not have knowledge thereof.

Prom the reading of the statute, it would appear that such notice should be given immediately or within a reasonable time.' This claimant’s counsel failed to do. We would be loath to thwart a claimant’s right to compensation, if his claim was meritorious, because of the neglect of his counsel. On the other hand, the burden is upon the claimant to proceed in the manner provided by the statute, if he seeks to establish his claim thereunder. Attention has repeatedly been called to the fact that counsel should follow procedure provided by law, and not, by their neglect, jeopardize the interest of claimants. In the present case we prefer to consider the appeal on its merits, believing that the decision of the referee, sustained by the board, was proper.

The referee found that (a) the claimant was an employee of The Glen Alden Coal Company as a miner in the underground workings of their Woodward Colliery, located in Luzerne County, Pa.; (b) shortly before noon, May 26, 1927, being the day before the accident in question, a caving took place in the bottom vein, No. 3 shaft, of the defendant’s colliery. Men employed in that section were ordered to leave at once. Claimant, working in an upper level, was among the men ordered out. Due to the cave damage, officials notified the colliery engineer not to blow the whistle for work at 7 P. M., as was the custom when there was work the following day; (c) shortly after 6 o’clock, May 27th, being the day following, claimant went to the head of No. 3 shaft of defendant’s colliery to ascertain whether he was wanted for work that day. While waiting to see the boss to inquire about work, he entered a shanty at the head of the shaft to keep warm — the weather being-cold and raw. Claimant was injured by a terrific explosion, wrecking the building, a few minutes after entering; (d) claimant was not actually furthering the interest of his employer when injured, although upon employer’s premises. Claimant was not in the course of employment when injured; that he voluntarily came upon the premises at a time when the mines were shut down, due to accident.

The evidence fully supports the findings of fact and conclusions of law.

One, Dehortal, a fellow-worker, a buddy of claimant, was in the same shanty with claimant. In his own language, he was “waiting for the boss.” He gave as a reason: “I wanted to ask him whether I was going to work or not.” He had been ordered out of the mines the day before when there had been a great cave. He had known that men had been injured thereby; saw injured men brought out on the cage. He was aware that other men had been caught in the mines and that a rescue crew had been and were at work. Prom his own testimony, he did not come upon the premises for the purpose of going to work, but, at best, to find out what was going to be done. He was dressed in clean clothes, not working clothes.

Another witness, Kuller, called by claimant, testified: “I go to see if there was work or not.”

The claimant himself, who lived five minutes’ walk from the shaft, admitted he was on the premises with his street clothes and without a dinner-pail. He knew of the disaster. In his own language, he states: “I want to find out how they made out; if they need anybody to go to work I go to work.”

Under the statutes, compensation is allowed for “personal injury to, or for the death of, such employee, by accident, in the course of his employment.” The act further defines “injury by an accident in the course of his employment” as including injuries “sustained while the employee is actually engaged in the furtherance of the business or affairs of the employer.”

It is true that the Compensation Act, being a remedial act, is to receive a liberal construction: Pater v. Superior Steel Co., 263 Pa. 244. But to be entitled to compensation, claimant must bring himself within the provisions of the act. The test is whether he was in the course of his employment, not whether he was on the premises of the employer: Ward v. The Atlantic Refining Co., 84 Pa. Superior Ct. 434.

“Whether a workman is injured or killed in the course of his employment within the meaning of that term as used in the Workmen’s Compensation Law is a question of law, and as such is open to review.

“Under the Act of June 26, 1919, P. L. 642, the evidence in workmen’s compensation cases is brought before the appellate court, and it is incumbent upon that court to determine whether there is evidence to support the findings, and whether the law has been properly applied:” Poffinberger v. W. W. Martin Co., 83 Pa. Superior Ct. 524.

It is true that compensation will be awarded an employee injured while attempting to reach his work on premises used by his employer in the conduct of his business. See Tolan v. Philadelphia & Reading Coal and Iron Co., 270 Pa. 12. Under the testimony in the case at bar, however, the referee could not have found that the claimant was going to work. All the .evidence, including the admission of claimant himself, establishes that claimant, with knowledge that a disaster at the mines where he worked, within five minutes’ walk from his home, had occurred the day before, went upon defendant’s premises to see what was going on, unprepared to go down the shaft, but intending, if work was to be started, to return and dress therefor. Clearly the referee could not have found that he was in the course of his employment, or that he was engaged in the furtherance of the business or the affairs of his employer. Therefore:

Decision of the referee, affirmed by the Compensation Board, is sustained and the appeal of claimant dismissed.

From Frank P. Slattery, Wilkes-Barre, Pa.


author: Ryan, P. J.,

text:
    Moyer v. Yoder.

      Mark Thatcher, for plaintiff; Hiram H.'Keller, for defendant.
    Jan. 7, 1929.
   Ryan, P. J.,

The plaintiff avers that the defendant purchased a property belonging to her husband at a sheriff’s sale and before he did so agreed that he would permit her to buy it from him after he became the purchaser. The defendant denies that the plaintiff is entitled to equitable relief and refuses to convey. The bill prays for the enforcement of the alleged agreement.

Finding of facts.

1. Howard H. Moyer, the plaintiff’s husband, from April 1, 1921, to Oct. 2, 1926, was the owner of a certain messuage and three tracts of land situated in the Township of Hilltown and County of Bucks, containing 9 acres and 7 perches, 3 acres and 2 acres and 149 perches, respectively.

2. The said premises were sold at sheriff’s sale on Oct. 2, 1926, to Samuel M. Yoder, the defendant, for the consideration of $3635, a deed for the same being delivered to him by Abram L. Kulp, sheriff, on Oct. 18, 1926.

3. At the date of said sheriff’s sale the said premises were subject to the lien of judgments as follows: Edgar W. Crouthamel, assignee of the estate of Jacob B. Crouthamel, deceased, v. Howard H. Moyer and Mayme D. Moyer, revived March 11, 1926, to No. 206, April Term, 1926, recorded in Judgment Docket No. 47, page 199, for $3340.13; Samuel M. Yoder, to the use of John W. Nace, v. Howard H. Moyer and Artemas M. Bishop, revived April 29, 1926, to No. 55, April Term, 1926, for $1400; Mayme D. Moyer v. Howard H. Moyer, revived June 8, 1926, for $1750, with interest; Sellersville National Bank v. Howard H. Moyer, revived'to June 11,1926, to No. 32, June Term, 1926, for $2500, with interest; The Texas Company v. Howard H. Moyer, judgment by default, for $492.56. (execution issued thereon but exemption claimed by the defendant and no money realized); The Fiske Tire Co., a corporation, v. Howard H. Moyer, judgment by default, for $2124.31 and costs.

4. The said premises were sold upon a fi. fa. upon the first judgment lien of Edgar W. Crouthamel, assignee, &c., v. Howard H. Moyer and Mayme D. Moyer and purchased by the said Samuel M. Yoder, the second lien creditor.

5. After the sale the defendant sold the two lots containing 3 acres and 2 acres and 149 perches. He also removed a building from the premises. At the time of the filing of the bill, he still held title to the 9 acres and 7 perches, upon which stand the buildings.

6. The defendant and her husband since the sheriff’s sale have continued to' live on the remaining tract, paying rent at the rate of $15 a month.

Discussion.

The evidence does not sustain the contention of the plaintiff that by reason of assurances, given to her before the sale by the defendant a trust ex maleficien in her favor resulted from the defendant’s purchase of the land. She testified to a conversation had with the defendant two days before the sale at her house as follows: Q. “Did Mr. Yoder before the time of the sheriff’s sale say anything to you about the purchase of this property at the sheriff’s sale?” A. “Yes, sir.” Q. “For whom did he say he was purchasing it?” A. “Said he would buy it himself, but if we could handle it once we could have it and he wouldn’t want to make a cent.” Annie Yoder, the plaintiff’s mother, who was present when the conversation with the defendant testified to by plaintiff took place, testified as follows: “He said he was going to buy the property for himself and when they were able, that they had money to pay the taxes and interest, she would have the first chance and he wouldn’t make a cent at the price; if he would fix anything it would be taken account, and if he would make anything on the lots it would go off of the property.” Howard H. Moyer, the plaintiff’s husband, testified that two or three days before the sale the defendant said to him, in the absence of the plaintiff but in the presence of the defendant’s wife, and in answer to the witness’s inquiry: “Are you going to buy the place so that my wife can get it afterwards or not?” “We will see,” and that he (Moyer) said in response: “We would see then, right now was the time to see; we didn’t want to see after the thing was over and it was too late.” Again, he testified that the defendant said to him the following night “that him and his wife decided to buy the place and to place it in his name and fix up what necessary repairs were to be made, new barn roof, new porch roof, and so forth, make the necessary repairs and sell off those building-lots, which he did sell off, and whatever money that would bring would lower the place in price, and whatever he would spend to fix it up would be added up and he could turn it over to my wife and he didn’t want to make a dollar.” The defendant testified to substantially the same thing. He said that he said to the plaintiff: “I will buy it for myself, and if you have money and want to buy it, you will have the first chance and I won’t make a cent.” He also said that the plaintiff had sent word to him that he “should not buy the property for them.” This testimony on the part of the plaintiff goes no further than to establish a mere naked promise to convey to the plaintiff after the sale if she was able to buy the property. It was a contract resting in parol merely and did not pass any title to the land that could be enforced in equity or by ejectment. The defendant had an interest in the sale and bid to protect his judgment next in rank after that upon which execution was issued and the sale held. He paid for the property with his own money. The plaintiff had no interest in the property: Bank v. Cowperthwaite, 10 W. N. C. 532. She paid no part of the purchase money. She showed no fraud on the part of the defendant which entered into his purchase of the property at sheriff’s sale. The testimony as to an arrangement with Allen G. Moyer to buy the property for plaintiff if Samuel D. Yoder, the defendant, did not do so is vague and uncertain. It appears that Allen G. Moyer, Samuel D. Yoder, Mrs. Samuel D. Yoder and the plaintiff were present at the plaintiff’s home at a conversation about the expected sheriff’s sale of the property. It took place six weeks or two months before the sale and before the property was advertised for sale. While Allen G. Moyer testified that he would have been willing to buy the property if Samuel D. Yoder did not, he did not say so to Samuel D. Yoder, and it does not appear that the latter knew of any arrangement with Allen G. Moyer to do so. In the absence of such knowledge on Samuel D. Yoder’s part, he cannot be said to have made any representations to anybody to induce him to refrain from bidding. “A resulting trust can only arise from some fraudulent act by or through which the title had been obtained, or by the payment of the money of the alleged use-party for the purchase of the property, at the time the conveyance is made and that neither subsequent fraud nor subsequent payment will avail to raise such a trust:” Salter v. Bird, 103 Pa. 436; McCloskey v. McCloskey, 205 Pa. 491; Kraft v. Smith, 117 Pa. 183; Johnson v. Shrawder, 80 Pa. Superior Ct. 125; Justice v. Watkins, 276 Pa. 138. The plaintiff, therefore, has failed to make out a case within the authorities and her bill must be dismissed.

We have reached, therefore, the following

Conclusions of law.

1. The defendant does not hold title to the land purchased by him at the sheriff’s sale as trustee for the plaintiff.

2. The plaintiff is not entitled to the relief prayed for and her bill must be dismissed.

Decree.

And now, to wit, Jan. 7, 1929, upon consideration of the foregoing case, it is ordered, adjudged and decreed that the prothonotary is instructed to enter a decree nisi in accordance with the foregoing conclusions of law and forthwith to give notice to the parties, or their counsel, of the filing of this decision and the entering of the decree nisi.

Prom Calvin S. Boyer, Doylestown, Pa.


author: Alessandroni, J.,

text:
    Weiss et al. v. Greenberg.

      C. A. Sowers and S. Goodis, for plaintiffs.

      O. J. Roberts and Robert Levin, for defendant.
    July 15, 1929.
   Alessandroni, J.,

The plaintiffs brought a bill in equity, praying for an injunction restraining the erection of garages by the defendant upon a driveway and for an order for the removal of the part constructed so as to restore the plaintiffs’ easement. The defendant filed an answer, denying that the plaintiffs had any easement in the driveway upon which the garages were being erected or that the garages would interfere with the plaintiffs’ use of the driveway. The cause proceeded to trial and the chancellor found that the plaintiffs had an easement in the driveway which the erection of the defendant’s garages violated, and ordered the removal of the garages and the restoration of the driveway. To this adjudication the defendant has filed forty-six exceptions, which, in substance, aver that the chancellor erred in finding as a fact that the plaintiffs had an easement in the driveway upon which the garages were erected, and in his conclusion of law and decree nisi that the plaintiffs’ easement had been violated and that the easement should be restored.

It appears from the facts that a tract of land consisting of five contiguous lots on the northwestern corner of 49th Street and Osage Avenue, Philadelphia, was conveyed by Maurice Rose to Charles E. Evans. The deed provided that the land was conveyed “together with the free and common use,, right, liberty or privilege of all of the above-mentioned driveway at all times hereafter, forever, and together with all and singular the buildings, improvements, ways, streets, alleys, passages, watercourses, rights, liberties, privileges, hereditaments and appurtenances whatsoever thereunto belonging or in anywise appertaining. . .

The driveway referred to in this plot was a ten-foot driveway occupying the rear strip of the lots conveyed. Upon this tract Evans erected five dwellings with garages, which were numbered 414, 416, 418, 420 and 422 South 49th Street. He improved the ten-foot di-iveway in the rear of the buildings. He then sold the northernmost property, No. 414 South 49th Street, to the defendant, the deed stating that it included “in the rear thereof a certain ten-foot wide driveway which runs southwardly leading into Osage Avenue, together with the free and common use, right, liberty and privilege of the said ten-foot driveway as and for a passageway and watercourse at all times hereafter, forever.” Evans then disposed of the remaining four properties, all of wmcn were conveyed “together with the free and common use, right, liberty and privilege of the said ten-foot driveway as and for a passageway and watercourse at all times hereafter, forever, and together with all and singular, the buildings, improvements, ways, streets, alleys, passageways, watercourses, rights, liberties, privileges, hereditaments and appurtenances whatsoever thereunto belonging, or in anywise appertaining. . . .’’ In fact, the deed to Sara Maen granted the right to use the driveway as a passageway and watercourse “at all times hereafter, forever, in common with the owners, tenants and occupiers of the other lots of ground bounded thereon and entitled to the use thereof.” The driveway in the rear of these homes is cemented and is “blind,” that is, it extends from Osage Avenue to the northern end of the defendant’s lot, there being at the said northern end a cement barrier and iron fence. The defendant occupies the last or inside house on this driveway. There is also a seventeen-foot yard space between the driveway and the houses.

The defendant erected three garages on the space which was laid out as a driveway and yard in the rear of her house.

When the construction was begun, a protest was made by the plaintiffs and other neighbors claiming right to the use of the driveway, and a formal notice of the objection served upon the defendant Notwithstanding this, the defendant completed the garages.

The sole question raised by the defendant’s exceptions is, in substanee, did the plaintiffs have an easement to the use of the driveway as a passageway for its entire length or only such use as was necessary for purposes of ingress and egress?

The deeds conveyed the free and common use, right, liberty and privilege of the driveway as a passageway to all of the owners of the five properties.

A passageway is defined as being “a way or highway:” 30 Cyc., 800. Free means “unconstrained:” Black’s Law Dictionary. Common is defined in 8 Cyc., 339, as “usual, ordinary, accustomed, shared among several; owned by several jointly, belonging equally to more than one or to many indefinitely.”

Under these definitions, it would seem that the grant intended in this case was to the use of this way with an equal right in each of the owners to use it jointly. To decide otherwise and sustain the defendant's contention that the other four owners had no right to an easement of passage over that part of the driveway located on his plot would be to say that the other four owners were granted no right to use the part of the driveway owned by him in fee, although he was granted the free right to use the parts of the driveway owned by them in fee.

It is also obvious that the defendant’s contention, if carried to its logical conclusion, would mean that the owner of No. 422 South 49th Street, the corner property, would have no right to use the portion of the driveway located on the premises Nos. 414, 416, 418 and 420, and that any user of the driveway as a passageway, except on his own premises, would be a trespass. The same reasoning would apply to the owner of Nos. 416, 418 or 420. This is so obviously an incongruous interpretation of intention and so violative of the reasonable intent and understanding of the grantor and the interested grantees as to require no comment. Moreover, one’s right of easement does not depend upon the absolute necessity of the right of user, but upon the expressed intention and understanding of the interested parties in creating or granting the user.

It might also be asked why the language granting a right to use the entire driveway as a passageway to the defendant did not grant the same right to the plaintiffs.

The authorities are in support of the conclusions of the chancellor. In Ellis v. The Academy of Music, 120 Pa. 608, it was decided that “the right, whether in the fee or only in the way, was common to both parties, so that neither, without the assent of the other, had the right to alter the character of the alley in any particular. Nor did the court err in charging that parties who are entitled to a free use of an alley have the same right in it that the public has in its highways. . . .” Under this rule the plaintiffs would have the same right in this passageway that the public has in its highway, and clearly if this passageway was a street, the contention of the defendant would be ludicrous. Moreover, the facts indicate that the defendant has violated the easement by changing the character of the passageway. We have found no cases drawing a distinction between “blind” passageways and those which are open.

In the recent case of Stuart v. Gimbel Bros., 290 Pa. 210, it was said: “No one can be heard to complain in judicial proceedings unless he himself has been injured, and the owner of the fee in land, subject to an easement, has the right to build under or over the land so long as he avoids interfering with the right of enjoyment of other abutting owners.”

This case also established the proposition that a decree in equity should follow the law and repudiates the doctrine that a decree is of grace. Clearly the defendant has interfered with the right of enjoyment of the passageway to which the plaintiffs are entitled.

It is also contended by the defendant that no easement existed before Evans granted any of the lots, inasmuch as any easement would be united with the estate of the dominant tenement by the mere ownership of the five lots in one party. However, the case of Kieffer v. Imhoff, 26 Pa. 438, clearly indicates that this doctrine is not enforced when permanent improvements are made which are obvious and manifest. As stated by Mr. Justice Mitchell in Grace Church v. Dobbins, 153 Pa. 294: “The law on this subject is settled beyond question. When an owner of land subjects part of it to an open, visible, permanent and continuous service or easement in favor of another part, and then aliens either, the purchaser takes subject to the burden or the benefit, as the case may be. This is the general rule founded on the principle that a man shall not derogate from his own grant.”

The court, in Phillips v. Phillips, 48 Pa. 178, discussed the principle of Kieffer v. Imhoff, supra, saying: “It is not to be understood by this doctrine that any temporary convenience adopted by the owner of property is within it. By all the authorities, it is confined to cases of servitudes of a permanent nature, notorious or plainly visible, and from the character of which it may be presumed that the owner was desirous of their preservation as servitudes, evidently necessary to the convenient enjoyment of the property to which they belong and not for the purpose of mere pleasure.”

It, therefore, can be said that the common right of easement granted to Evans has not disappeared. In fact, the deeds from Evans to his grantees expressed his intention to continue such an easement by giving the right of passage “in common” to all his grantees. It is only reasonable to assume that it was intended to give the common and free right of passage as to the entire driveway, and not only for the purposes of ingress and egress, which contention, if adopted, would lead to the ridiculous conclusion referred to above.

The owner of a servient soil has the right to make use of his property as he chooses, if by so doing he does not substantially interfere with the easement: Library Co. v. Fidelity Trust Co., 235 Pa. 5.

Defendant suggests that the conclusions of law and decree of the chancellor require the removal of the entire erection made by the defendant. It is clear that the plaintiffs’ easement only extends to the driveway and that the defendant should be ordered to remove the structures erected in the bed of the driveway. Upon examining the conclusions of law and decree, we do not feel that the chancellor ordered the entire structure removed, but for the purposes of clarity it is hereby restated and ordered that only the buildings erected in the bed of the ten-foot driveway in the rear of the premises situated at No. 414 South 49th Street shall be removed.

All of the exceptions are overruled and dismissed, and counsel is directed to prepare and submit a form of final decree.


author: Martin, P. J.,

text:
    Specktor et al. v. Norwich Union Fire Insurance Society, Ltd.

      W. A. Gray, for plaintiffs; H. M. Schell, for defendant.
    June 19, 1929.
   Martin, P. J.,

The petition in support of the rule avers that this court is without jurisdiction in this proceeding because the service upon defendant was not lawfully made. The same question was raised and the same attack made upon the jurisdiction of the court in January, 1923, and this court filed an opinion on June 13, 1924, holding the service sufficient and that the court had jurisdiction of the defendant, and discharged the rule. Subsequently, the defendant filed an affidavit of defense to the merits.

In Specktor v. North British and Mercantile Ins. Co., 293 Pa. 232, and Specktor et al. v. Hanover Fire Ins. Co., 295 Pa. 390, this court held that under the Act of March 5, 1925, P. L. 23, rulings upon questions of jurisdiction became conclusive after fifteen days, and the Supreme Court sustained this conclusion. The defendants now hang upon the slender thread that the Supreme Court having said in Specktor et al. v. Hanover Fire Ins. Co., supra, that pleading to the merits and going to trial operates- as a waiver of a right to further object to the jurisdiction of the court, they can now attack the jurisdiction in this case prior to going to trial, even though they have filed an affidavit to the merits. In taking this position they overlook the language of the learned Justice of the Supreme Court in the last-mentioned case, where he states: “In Specktor v. North British and Mercantile Ins. Co., 293 Pa. 232, where the facts were exactly the same as here, we held ‘that the appeal would have to be quashed because not taken within the time specified by the Act of March 5, 1925, P. L. 23, which requires it to be taken within fifteen days after the ruling complained of, if made subsequent to the passage of the statute, or within fifteen days after its passage, if made before that time,’ the act further stating ‘that a failure to appeal within the time specified will be deemed a waiver of all objections to jurisdiction over the defendant personally.’ We adhere to that ruling; and so doing requires us to hold that the defendant, by not appealing until more than four years after the question of jurisdiction was decided against him, and more than three and a-half years after the passage of the act, thereby waived the right to further object on that ground.”

The question of the jurisdiction of the court in this case was flatly raised and decided by the rule granted in 1923, and its discharge in the opinion of 1924; and to permit the same question to be now raised would be in open defiance of the Act of March 5, 1925. The rule must be discharged.

And now, to wit, June 19, 1929, the rule of the defendant to show cause is discharged. The motion of plaintiffs to strike off said rule is allowed.


text:
    Seltzer et al. v. Novor & Israel et al.

      G. D. Weiss, for plaintiffs; M. G. Weinberg, for defendants.
    July 25, 1929.
   Martin, P. J.,

Defendants leased the third floor of the building No. 637 Market Street for the term of one year commencing April 15, 1921, at the rent of $1200, payable in monthly instalments of $100. There was a provision in the lease that either party might terminate it at the end of the term, or any renewal thereof, by giving the other sixty days’ written notice, and upon default of notice the lease was to continue for a further period of one year, and so on from year to year until terminated by either party giving to the other sixty days’ written notice previous to the expiration of the then term.

It was stipulated in the lease that if the rent, or any charges included as rent, should be in arrear and unpaid, or if the lessee underlet or otherwise used the premises in any way other than as expressed in the lease, or failed to comply with the conditions of the lease or notice given under the terms of the lease, or did not fulfill every covenant and agreement on the part of the lessee to be performed, the lease would determine at the option of the lessor, and any attorney was authorized as attorney for the lessee, at the request of the lessor, to sign an agreement for entering an amicable action and judgment in ejectment for recovery of possession of the demised premises.

On June 10,1925, judgment was entered in an amicable action in ejectment at the suit of the lessors against the lessees and possession of the property was delivered to the lessors.

On July 1, 1929, judgment was entered against the lessees for thirteen months’ rent alleged to be due under the terms of the lease from March 4, 1925, to March 4, 1926, inclusive. An averment of default was filed by plaintiffs and judgment was confessed by the lessors against the lessees pursuant to the authority claimed to be contained in the lease in the clause: “Said lessee hereby waives the benefit of any and all exemption laws now made or which may hereafter be made releasing goods on said premises or elsewhere from levy and sale for rent and other charges herein reserved as rent, and the said lessee further agrees that this waiver shall extend and be applicable to any process, execution or executions that may be issued in any and all suits, actions or proceedings for the collection of rent or other charges herein reserved as rent due and in arrears, for any expense incurred in removing ashes, rubbish or refuse matter from said premises and for damage for the non-fulfillment of any of the covenants contained, and that this lease shall be a sufficient warrant to said lessors to confess judgment therefor against said lessee.”

It was agreed that if rent was at any time unpaid, the lease should, at the option of the lessors, cease and absolutely determine, and any attorney immediately thereafter was authorized as attorney for the .lessees to sign an agreement for entry in an amicable action and judgment in ejectment; there was no warrant for the entry of a money judgment for rent: Ellis v. Ambler, 11 Pa. Superior Ct. 406.

The clause that waives the benefit of the exemption laws from levy and sale for rent and other charges reserved as rent and extends the exemption to any process or execution issued in any and all suits for collection of rent or other charges reserved as rent due and in arrears or any expense incurred in removing ashes, rubbish or refuse from the premises and for damages for the fulfillment of any of the covenants contained in the lease provides: . That this lease shall be a sufficient warrant to said lessors to confess judgment therefor against said lessee.”

The word “therefor” is to designate for what the lessors are authorized to confess judgment; and there is no other warrant contained in the lease for the confession of judgment except in case of an amicable confession for possession of the demised property.

The right of plaintiffs to enter a judgment by confession is dependent upon the provisions of the written lease: Weaver v. McDevitt, 21 Pa. Superior Ct. 597, 598. In McClintock et al. v. Loveless, 5 Dist. R. 417, it was said: “It seems to us that such a harsh and unusual clause in a lease ought to be strictly construed, and we are not disposed to extend it by construction a particle further than its language requires. The rule governing the construction of such reservations is that they shall be construed most strongly against the grantor and they shall not be extended by implication or construction beyond the clear intent of the parties gathered from the language of the reservation.”

If the words “this lease shall be a sufficient warrant to confess judgment therefor against said lessee” are intended to authorize the entry of judgment for rent or other charges reserved as rent due and in arrears, or for expense incurred in removing ashes, rubbish or refuse matter from the premises, and for damage for the non-fulfillment of any of the covenants contained in the lease, there is no direction by whom the judgment is to be entered. It cannot be entered by the prothonotary, for there is no “amount from the face of the instrument” which “may appear to be due:” Act of Feb. 24, 1806, § 28, P. L. 278 (4 Sm. Laws, 270).

Judgment by confession can only be sustained by a warrant authorizing it. at the time and in the manner and form in which it was entered: Agricultural Trust Co. v. Brubaker and Shaub, 73 Pa. Superior Ct. 468.

There was no warrant in the lease authorizing the judgment in the manner and form in which it was entered: Eddy v. Smiley, 26 Pa. Superior Ct. 318.

And now, to wit, July 25, 1929, the rule to show cause why the judgment entered in the above-entitled case should not be stricken from the record is made absolute, and the judgment is ordered to be stricken from the record.