author: Butler, P. J.

text:
    White v. Logan.

      Negligence — Runaway team — Master and servant — Failure to warn of danger — Vice-principal.
    In an action for injuries sustained by the running away of a team which plaintiff was driving, the case is for the jury and judgment for defendant n. o. v. will be refused where there is evidence that plaintiff was told to drive the team by one in charge of defendant’s farm, and that the person in charge knew that the team was unsafe and had run away on prior occasions, but did not warn plaintiff.
    Trespass for personal injuries. Motion for judgment n. o. v. C. P. Chester Co., Aug. T., 1926, No. 102.

      W. S. Harris, for plaintiff.

      J. Paul MacElree and J. Howard Rhoads, for defendant.
   Butler, P. J.

The evidence was harmonious that, pursuant to an advertisement put in the Local News of West Chester by Jeandell, employed by defendant upon his farm, plaintiff presented himself thereon and was employed, on April 12, 1926, through Jeandell, and began work the next day. The defendant’s testimony was that at this time Jeandell had charge as the farm head, and, furthermore, plaintiff testified that when defendant called upon him at the hospital and was asked by plaintiff about the wages for the days he worked on defendant’s farm, defendant replied that was all right, the wages would be paid. This evidence, practically speaking, was conclusive that plaintiff was, with defendant’s authority, employed upon his farm. Indeed, the testimony of defendant, Jeandell, and Botwright acknowledged that plaintiff was thus employed. Defendant testified that at this time Bot-wright was in effect his vice-principal on the farm; that because he did not know much about farming, nor about Jeandell or the other man on the farm, Botwright, well known by him, was placed on the farm to have general charge and control of it and the men. Even if Botwright had been defendant’s employee in a much less important capacity than vice-principal — as admittedly, under all the testimony, at the time of the injury to plaintiff, Botwright was directing and overseeing plaintiff in connection with his use of the manure spreader — any negligence of his, placing plaintiff in the danger which caused his accident, would have been chargeable to defendant: Kelly v. Henry Bower Chemical Manuf. Co., 239 Pa. 555.

Plaintiff testified that when he began work on this farm, six days before the accident, Jeandell had told him to use a certain light-weight pair of horses for such work as required the use of horses, that he had done so, and down to the day of the accident had no knowledge or experience respecting any other horses on the farm; that on the day of the accident, he told Bot-wright that the small horses could not handle the manure spreader, and that Botwright then said, “there is the big black team in the stable; they are to be used in the spreader;” that he and Jeandell then got the blacks, hitched them to the spreader in the presence of Botwright; that he, the plaintiff, mounted the spreader, started the horses; that they at once jumped into a run; that he could not control them, and eventually was thrown out, suffering the injuries of which he complains.

Everett Smiley testified that he had worked on defendant’s farm for nearly two years; that he undertook to drive the blacks in the fall of 1925; that in the start they pulled the double trees loose and pulled him over the front of the wagon, but that he succeeded in stopping them; that last February, 1926, he hitched them to a wagon; that as he stood by them with the lines in his hands, with apparently nothing to frighten them, they plunged and ran away, finally entering a wood and demolishing the wagon.

Botwright and Jeandell knew of the conduct of the blacks, and that, to say the least, they were apparently unsafe horses for use by a man who was uninformed and unacquainted with their past deeds and dispositions. This was made clear by Botwright and Jeandell when they were called by the defense to contradict the testimony of plaintiff to the effect that Botwright ordered him to use the blacks and gave no information about their manners and habits, Botwright testifying that he told plaintiff, if he used the blacks, he must be careful, as they ran away as often as they got a chance, and that Jeandell then said, “I forbade White (plaintiff) to use those horses because we know what kind of horses they are;” Jeandell testifying that he had told the plaintiff that the blacks had to be watched.

It is thus obvious, we believe, that binding instructions could not properly have been given for defendant, and that judgment may not now be directed for him. Under the evidence, it was practically free from question that plaintiff was in defendant’s employ at the time the blacks ran away with him; that they were dangerous for use by an uninformed, uncautioned man; that Botwright so represented defendant on the farm as to make defendant responsible for what he, Botwright, said and did in respect of plaintiff’s safety in the matter of his using the blacks; that Botwright knew the blacks as runaways, unsafe in uninstructed, uncautioned hands, and then there was the positive testimony of plaintiff to the effect that without any instruction or warning, in complete ignorance of the unfortunate experiences of these horses, calculated to make them, what apparently they were, horses confirmed in the disposition to run away, Botwright simply ordered him to use them in the spreader.

That the jury was thus warranted by abundant evidence in finding that defendant was, through Botwright, guilty of negligence, rendering him responsible for plaintiff’s injuries, is, we believe, clear.

Counsel for defendant urges that the evidence relative to the past conduct of the blacks, their known characteristics and manners, did not warrant submission to the jury of the question whether defendant was guilty of negligence, if his vice-principal, Botwright, directed plaintiff to use them, without informing him of their past deeds, without cautioning him to use special care. While, as appears from the charge, the jury were carefully instructed that there could be no recovery unless, by'the evidence, they were satisfied that it was negligent to have plaintiff use the blacks without cautioning him concerning their records and disposition, it is, in our opinion, manifest that it was inexcusably negligent for Botwright to direct and have plaintiff use the blacks, as the jury have found he did, without instruction and cautioning plaintiff; Botwright, defendant’s vice-principal in fact, and by virtue of our act of assembly (Kelly v. Henry Bower Chemical Manuf. Co., supra), according to his testimony, knew the blacks as horses that would run away whenever they got a chance, and this, coupled with Smiley’s testimony as to the past experiences with these horses, clearly required defendant, through Bot-wright, his vice-principal, to give plaintiff the benefit of instructions and cautionings about them when he used them at the direction of Botwright. That no wrong was done defendant in submitting this question of negligence to the jury, we are confident.

With respect to the cases cited by counsel for defendant, we think it is enough to call attention to the facts present in our case according to the testimony, that some months before the blacks ran away with plaintiff, they had, in starting, pulled the double trees loose, tried to run, and pulled Smiley over the front of the wagon before he got them stopped — an experience that would naturally tend to spoil them and make runaways of them — that, later, some two or three months before the accident, when Smiley had completed attaching them to a wagon and had the lines in his hands preparatory to mounting the wagon, without any apparent cause for alarm, they plunged and ran away and persisted until they had entered a wood and demolished the wagon; that Botwright, defendant’s vice-principal, knew them as confirmed runaways; and that the question here submitted to the jury was not whether these horses had demonstrated themselves to be' so dangerous that it was negligent to have plaintiff use them under any circumstances, but merely whether the exercise of due care required that he be informed of their past experiences, of their conduct and disposition, so that he might use corresponding caution in their management. The rule for judgment is dismissed.

From Truman D. Wade, West Chester, Pa.


source: Caselaw Access Project

author: Potter, P. J.,

license: Public Domain

text:
    Seebold v. Seebold.

      Husband and wife — Divorce — Personal indignities — Jury trial — Evidence — Testimony of physician as to injuries to third person.

    1. A verdict of a jury in favor of libellant in proceedings! for divorce on the ground of personal indignities will be sustained where there is evidence that respondent was addicted to drink, had frequent outbursts of violent temper, called libellant vile and indecent names, was filthy in his habits, frequently struck her and made threats to kill her, and, while respondent denied much of libellant’s testimony, the trial judge is of opinion that, by reason of his manner in testifying, respondent’s testimony was not entitled to much weight.
    2. Where, in such case, respondent had a fight with his son as a result of some family troubles with which libellant had no concern, the physician who dressed the injuries was not permitted to testify as to their nature or cause, as such evidence would have been irrelevant.
    Libel for divorce. C. P. Snyder Co., Oct. T., 1926, No. 41.

      A. F. Gilbert, for libellant.

      W. H. Hackenburg and Jay G. Weiser, for respondent.
    June 27, 1927.
   Potter, P. J.,

On July 12, 1926, this libellant presented her libel, praying that a divorce be granted to her from her husband, the respondent, because of such indignities to her person as to render her condition intolerable and her life burdensome, by reason of which she was compelled to withdraw from his home and family. On Sept. 7, 1926, the answer of the respondent was filed, denying the allegations of the libel and asking for a jury trial. The replication of the libellant was filed Sept. 11, 1926. On Nov. 8, 1926, we made the rule for a jury trial absolute and framed the issue, the question being, “Did the respondent, Harry M. Seebold, offer such indignities to the person of the libellant, Jennie M. Seebold, as to render her condition intolerable and her life burdensome, and thereby force her to withdraw from his home and family?” in which issue the libellant to be the plaintiff and have the affirmative of the question and the respondent to be the defendant and have the negative.

The case, thus framed, was duly tried before a jury at our February Term of Court, 1927, which convened on Feb. 28, 1927, and on March 2, 1927, the jury returned the following verdict: “We find verdict in favor of the plaintiff. J. Frank Keller, foreman.”

On March 5, 1927, the defendant, by his counsel, filed a motion for judgment non obstante veredicto, also seven reasons for a new trial, the first four of which are in the usual stereotyped form:

1. The verdict was against the evidence.

2. The verdict was against the weight of the evidence.

3. The verdict was against the law.

4. The verdict was against the charge of the court.

We need take no time or space in a discussion of these four reasons. In our judgment, they are void of merit and are dismissed.

The other three reasons we shall discuss as we pass along hereinafter.

Under the Act of March 13, 1815, § 1, 6 Sm. Laws, 286, we find indignities offered to the wife by the husband as a cause of divorce. Under this act, this cause for divorce was extended to the wife only. But the Act of June 28 1923, P. L. 886, practically re-enacted the Act of 1815, but extended to the husband this cause for divorce also. A marked distinction, we think, is to be made between “cruel and barbarous treatment” and “indignities.” The Act of 1815 provides that, “when any husband shall, by cruel and barbarous treatment, have endangered his wife’s life,” the injured and innocent party shall be entitled to a divorce. The Act of June 25, 1895, P. L. 308, extends to the husband the right of divorce for the same cause. But it is to be noted that the wife has no cause of divorce for this cause against the husband unless the cruel and barbarous treatment endangers her life. As the present action is brought by the wife against her husband, we shall confine ourselves to the consideration of the action by the wife against the husband on the ground of indignities.

We think, however, an application for divorce by the wife against the husband for indignities stands on a different basis. The Act of 1815 provides that, “when any husband shall have . . . offered such indignities to her person as to render her condition intolerable and life burthensome, and thereby force her to withdraw from his house and family, in every such case it shall and may be lawful for the innocent and injured person to obtain a divorce from the bond of matrimony.”

On an application by the wife for a divorce on the ground of cruelty, she must prove such a course of cruel treatment as endangers her life, while on the ground of indignities she need only prove such a course of indignities as renders her condition intolerable and her life burdensome. Proof of cruelty embraces indignities, but the converse is not true. So that indignities embraces a separate and distinct cause of divorce.

In the case of Elmes v. Elmes, 9 Pa. 166, it is said: “To render the condition of the wife intolerable and her life burdensome, it is not necessary there should be blows or cruel and barbarous infliction of batteries that endanger her life. There may be, without that, such indignities to her person as to render her life a burden. The husband is bound to the observance of duty towards his wife; and as marriage is grounded on the original conditions of the sexes and dignified by strong and peculiar sentiments of affection, delicacy and honor, all treatment which violates these principles, habitually and constantly, and proceeds avowedly from hatred, revenge and spite, and which renders even the hours devoted to repose hours of weeping and distress, must render a woman’s condition intolerable and her life burdensome.”

Indignities to the person of the wife within the meaning of our statutes are a course of humiliating insults and annoyances, practiced in the various forms which ingenious malice could readily devise, and which eventually would destroy the life and health of the wife, although such conduct may be unaccompanied by violence, positive or threatened: Butler v. Butler, 1 Pars. 329. A single act of indignity is not sufficient. There must be a continued course of treatment: Richards v. Richards, 37 Pa. 225. But it need not be such as to endanger her life or health. The act does not so declare, without which wé cannot give it such a construction. But there are indignities to the wife which would not seriously impair her health, though they would render it too humiliating and burdensome for her to bear: May v. May, 62 Pa. 206. The act carefully distinguishes cruel treatment from indignities, and requires the first to pndanger life, and if the legislature had intended indignities to be also of that character, they could easily have said so. Not having done so, it cannot be superadded: May v. May, supra. The law does not define what is meant by indignities; it is left undefined and depends largely upon the circumstances of each case; but it is certain that it must consist of such a course of conduct as is humiliating and degrading and inconsistent with the wife’s position and relation as a wife, and such as is not provoked by her: Melvin v. Melvin, 130 Pa. 6. Charges of unehastity are gross indignities: Melvin v. Melvin, supra.

The case of Oxley v. Oxley, 191 Pa. 474, further bears out our views herein expressed.

In the case of Braun v. Braun, 194 Pa. 287, a divorce was granted where the husband was guilty of vile indecency, obscenity, profanity and coarse, brutal vulgarity.

We have cited some of our earlier cases as tending to substantiate the doctrines herein enunciated, and, upon examination of more recent cases, it is found these same dicta are still adhered to by our courts of last resort, such as Breene v. Breene, 76 Pa. Superior Ct. 568; Bender v. Bender, 86 Pa. Superior Ct. 182; Baker v. Baker, 195 Pa. 407.

Where testimony is taken in open court, and the judge who heard the case has an opportunity to observe their manner of testifying, and when witnesses who are equally interested contradict each other flatly, the conclusion of the judge who heard them as to which is to be believed is not to be lightly disturbed : Krug v. Krug, 22 Pa. Superior Ct. 572.

From the testimony and the records, we learn that this couple were married in the year 1894. That he is fifty-eight and she is forty-eight years of age. They have one child, a son, about thirty years old, who is married and resides in Rochester, New York. During their married life they have resided at Penns Creek, New Berlin, near Milton, all in Pennsylvania, and in the State of New York. He followed farming as an occupation, and at times was a teamster. He has always been more or less addicted to the use of strong drink, at times becoming grossly intoxicated; this by his own admission on the witness-stand. He is given to violent outbursts of temper. She charges him with calling her a whore, which he denies; that he called her vile and indecent names, which he admits, but says she applied the same epithets to him; that he struck her often, some of which he admits, but claims his blows were induced by her treatment of him. One disinterested witness says she saw him knock her down with his fist, which he denies. The libellant says he was filthy in his habits, unnecessarily soiling his underclothing, use'd the chamber in his bed-room when not necessary, that he urinated in the stove in the house, which she had to clean out, which he admits; that he often did the same in the coal bucket in the house; that he ran about the house naked and exposed his person to others, as testified to by them. Near neighbors, living a quarter of a mile away, testify they heard him cursing and swearing at his wife. She says he made frequent threats of personal violence to her person; that he had a venereal disease, to which he replied from the witness-stand that he did not know it if he had; if he had, he must have got it from her. She has testified to other acts of indignities on the part of this husband, quite a number of which are corroborated by outside witnesses. He admits some of these acts, denies others, and says all their trouble was produced by her people. He has brought several people who worked for him for a few days or a week or more, who say when they were at his house they saw nothing wrong in his or her demeanor towards each other. We cannot refrain from saying that family fights and quarrels do not usually occur in the presence of outsiders or neighbors. Several of the near neighbors testify he told them he would kill her; that he would lay the whole family out cold. While this may not be legally classed as an indignity to her, not having been said to her or in her presence, at the same time, we think it has some bearing to show the calibre of the man, taken with the other testimony in the case.

His testimony from the witness-stand was given in rather a frivolous, light manner. It was not given with that solemnity and weight that could convince us that he was sincere. It seemed to us from his general demeanor, both on the witness-stand and off, that he rather enjoyed the notoriety he was getting before a court-room full of people. Once we had to reprimand him for his light-aired, frivolous conduct when he was sitting at the counsel table. To make our view plain, we do not think his testimony is entitled to much weight.

This wife, no doubt, has her failings, as we all have, but we think she has endured much at the hands of this husband. We left the question to the jury to decide as to which of these two contending parties they believed, and they say, by their verdict, that they believe the wife, and that she is entitled to a divorce, with which we heartily concur.

Applying the law, as we have herein cited it, to the facts as developed in this case, we have no hesitation in saying that this respondent has repeatedly offered such indignities to his wife as to render her condition intolerable and her life burdensome, and to entitle her to a divorce a vinculo 'matrimonii. Contrasting the testimony on the part of the wife with that on the part of the husband, from our observation of the parties and their witnesses, we are led irresistibly to this conclusion.

As to the fifth reason for a new trial, it complains of our refusal to admit the testimony of Dr. Rothrock. It appears there was some trouble between the son and his father, the respondent, who claims the son hit him on the head with a mop-stick, injuring him, and that the son was encouraged in so doing by his mother, the libellant. She and the son say she had nothing to do with this quarrel between the son and the father. Counsel for the defendant offered to have Dr. Rothroek describe the alleged injuries, and asked him the following question: “Detail to the jury what you attended him for and what was the reason for it?” This question-was objected to, and we sustained the objection, and rightly so, we think. The injuries to this defendant were occasioned by a tussle between him and his son. The son and his mother both say she had nothing to do with it. We fail to see how any description of his injuries, occasioned in a fight between him and his son, could shed any light upon the question between this husband and his wife. Had she been concerned or had she injured him, the proposed testimony of the doctor might have been proper evidence, but, as between the father and the son, in a suit between the wife and the husband, it was not relevant, material or pertinent to the issue. The admission of it would have been simply lumbering the record with worthless evidence. In a suit for personal injuries, the symptoms, as described by the patient to the physician, in the absence of the other party, are usually admitted, although classed as hearsay, from the necessity of the thing, but we think it should be very carefully received and considered, as such evidence may very easily be turned into self-serving declarations. Several cases are cited by counsel for the defendant which are not in line with the facts of the case before us. We think we properly rejected this proposed testimony, and this reason is dismissed.

The sixth reason complains of our charge to the jury, wherein we are alleged to have said, substantially, that if the purpose of the marriage had been broken down and fa'iled, the verdict should be for the plaintiff. This is not dealing fair with the court. We made no expression as is charged to us. We did say, as follows, on pages 134 and 135 of the1 notes of testimony: “Again, there is some law which tells us that where the object of marriage has failed, there the plaintiff would be entitled to a divorce. I can only say to you that the object of marriage is a happy and honorable life between a man and a woman, propagation of the human race, and all that sort of thing, at the same time bearing in mind the respect and esteem and the attention that is due from the one fro the other. I say to you that if that has failed and marriage has been a total failure, on the one side or the other, without any mutuality to that failure, if it has been produced by the one side, and there can be no reconciliation, under the divorce laws of this State, the offended party would be entitled to a divorce.”

Then, again, on page 139, we said, in passing upon one of the defendant’s points: “The question is not, can these people live together? That is not the question. Some might say: Well, they might as well be divorced, they are all the time fighting! That is not the question. The question is, did this man do those acts towards his wife that she says he did which would justify her in securing a divorce? No matter whether they can live together or not, that is not before you and it is not before us.”

In framing the sixth reason, counsel did not give to the court the advantage of all we said in this behalf. Had they looked further, they would, no doubt, have found it. All we said in this respect should have been embraced in this reason. Perhaps then it would not have been framed. We did not mislead the jury. This reason is dismissed.

The seventh reason complains that we erred in affirming the plaintiff’s points and in charging the jury as requested by her. We do not know how we could have done otherwise. The plaintiff presented only two points, the first drawn in the exact language of the Supreme Court in the case of Oxley v. Oxley, 191 Pa. 474, and the other drawn in the exact language of the Superior Court in the case of Bender v. Bender, 86 Pa. Superior Ct. 182. Both these cases come from our appellate courts and should blaze the way in which we are to travel, and we can do no less than follow the law as they lay it down to us, which we think is correct. It is very easy for an ingenious mind to frame reasons for a new trial, but whether they contain merit or not is another question. This reason is dismissed.

We also have a motion for judgment non obstante veredicto. We think, in our disposition of the reasons for a new trial, we have practically disposed of this motion. We should not enter judgment non obstante veredicto unless we find we should have directed a verdict for the defendant, w;hich we are firmly convinced we should not have done. Wherefore, the motion is refused.

We are bearing in mind that the verdict of the jury in the trial of this case is advisory to the court. We are also bearing in mind that this jury trial was asked for by the defendant. He got it. We think he had a fair and a just trial. The matter was left to the jury to decide, as questions of fact, as to whether they would believe the defendant’s version of the matters in dispute or whether they would believe that of his wife. They apparently believed the wife’s version, and we think rightly so. We think the defendant has no cause to complain of the adverse verdict.

And now, to wit, June 27, 1927, the reasons assigned for a new trial are dismissed and the new trial is refused, as well as the motion for judgment non obstante veredicto. Let a final decree for a divorce a vinculo matrimonii be prepared and presented to US. From Charles P. Ulrich, Selinsgrove^ Pa


author: Koch, Dep. Att’y-Gen.,

text:
    Municipal Regulation of Vehicular Traffic.

      Municipalities — Vehicular traffic — Ordinances—Application of fines — Act of May 11, 1927.

    Cities and boroughs are authorized, under the Act of May 11, 1927, P. L. 886, to pass ordinances with regard to signal lights erected, installed and operated by such municipalities for the regulation of vehicular traffic, and they may, in such ordinances, provide penalties and retain the fines where violations of the ordinances have occurred and fines have been collected.
    Department of Justice. Opinion to Hon. James L. Stuart, Secretary of Highways.
    Sept. 28, 1927.
   Koch, Dep. Att’y-Gen.,

In your letter of Sept. 4, 1927, you ask this department to outline for the Department of Highways the subjects upon which cities and boroughs are empowered to pass ordinances regarding vehicular traffic, under the provisions of the Vehicle Code, approved May 11, 1927, P. L. 886, and effective Jan. 1, 1928. You also ask to be advised as to what fines or penalties may be retained by the cities or boroughs of the Commonwealth instead of being paid into the State Treasury.

The particular question that has arisen is whether cities and boroughs are authorized and empowered to pass ordinances with regard to signal lights erected, installed and operated in and by said cities and boroughs, and whether they may, in such ordinances, provide penalties and retain the fines in such instances where violations of the ordinances have occurred and fines have been collected.

. Section 1033 provides: “Local authorities, except as expressly authorized by this act, shall have no power or authority to alter any speed limitations declared in this act or to enact or enforce any ordinance, rule or regulation contrary to the provisions of this act, except that local authorities shall have power to provide, by ordinance, for the regulation of traffic, by means of traffic officers or semaphores or other signaling devices, on any portion of the highway where traffic is heavy or continuous, and may regulate or prohibit parking, or prohibit other than one-way traffic, upon certain highways, and may regulate the use of the highways by processions or assemblages.”

This section clearly gives the local authorities the right to provide by ordinance for the regulation of traffic under the circumstances outlined in said section. Section 1039 authorizes the local authorities to erect appropriate signs for the purpose of giving notice of local parking and other special regulations.

Section 1216 provides as follows: “Any city, borough, incorporated town, township or county which enforces an ordinance or resolution on a matter concerning which authority is expressly delegated to said authorities by this act, or for traffic matters not covered by this act, may impose a fine of not more than fifty ($50) dollars, to be collected by summary conviction before any mayor, burgess, magistrate, alderman or justice of the peace as fines and penalties are now by law collected. In the event of non-payment of fine and costs of prosecution, the mayor, burgess, magistrate, alderman or justice of the peace may sentence any person convicted of violating an ordinance or resolution to undergo imprisonment for a period of not exceeding ten (10) days: provided, that any person so convicted shall have the right of appeal as in other cases of summary conviction; and further provided, that any person accused of violating a local ordinance or resolution enforced under the authority of this act may waive summary hearing and give bond, in a sum equal to double the amount of the maximum fine that might be imposed, for appearance for trial before a judge of the court of quarter sessions, or in the county court, or in the municipal court in counties wherein such courts exist; and thereupon the mayor, burgess, magistrate, alderman or justice of the peace shall, within fifteen (15) days, return the complaint or information to the said court; and if any person so accused shall be convicted in such court of the offense charged, he shall be fined as prescribed by said ordinance or resolution, or, in event of non-payment of such fine and costs of prosecution, to suffer imprisonment for a period not to exceed ten (10) days. All fines and bail forfeited as provided for in this section shall be paid to the treasurer of such city, borough, incorporated town or township for the construction, repair and maintenance of the highways thereof. No operator or driver of a vehicle violating any of the provisions of this act shall, upon conviction, be fined under any ordinance or resolution except on those matters concerning which authority is expressly delegated to local authorities by this act.”

Section 1211 provides that all fines and penalties collected under the provisions of this act for violation of the same shall be paid to the State Treasurer, except those collected for violations of the provisions as to speed or weight, which fines and penalties shall be paid to the treasurer of the municipality for the construction, repair and maintenance of the highways thereof. There is no conflict between sections 1211 and 1216, in our opinion, and there should be no difficulty in interpreting these sections when read together. But it is suggested that section 1040, providing for signal interpretations, might have some weight in support of the view that the State Treasurer should receive fines collected for violation of ordinances regulating traffic-signal lights. This suggestion is not convincing. Signal lights and semaphores are installed by the municipalities interested and are maintained and operated at their expense, which in some cases is not inconsiderable. It is, therefore, only fair that the municipalities should have the right to fines collected for violations of ordinances for the regulation of traffic by signal lights or semaphores. And this is what we think the legislature intended. It will be noted that section 1203 does not provide a penalty for violations of section 1040.

Section 1040 merely provides a uniform State-wide interpretation of signal lights so that the motorist, in going from one municipality to another, does not find himself confronted with varying interpretations imposed by different ordinances. This section compels municipalities in the passage and enforcement of their ordinances to a uniformity in regard to the interpretation of signal lights throughout the State. No ordinance may in anywise contravene any of the provisions of section 1040.

It is, therefore, the opinion of this department that cities, boroughs, incorporated towns and townships may lawfully pass ordinances providing for the regulation of traffic by means of traffic officers, semaphores, traffic-control lights or other signaling devices on any portion of the highways within their proper jurisdiction where traffic is heavy or continuous. In such cases, the municipal law-making bodies are to be the judges as to where such traffic policemen, semaphores or other signaling devices or traffic control lights shall be maintained.

In addition, such municipalities may regulate or prohibit parking or prohibit other than one-way traffic upon certain highways within their respective jurisdiction, and they may regulate the use of highways by processions or assemblages.

In such ordinances, the penalties provided may be a fine of not more than fifty ($50) dollars, to be collected by summary conviction in the manner provided by section 1216 of the act. Such fines belong to the municipality for the construction, repair and maintenance of the highways thereof.

Of course, it is needless to say that no ordinance may in any way contravene, curtail or alter any of the explicit provisions of the Vehicle Code, and the power of local authorities is expressly restricted to the cases mentioned in section 1033 and hereinabove discussed at length and to “traffic matters not covered by this act.” Section 1216.

It will be noted that section 1039 provides that local parking and other special regulations shall not be enforceable against an alleged violator if, at the time and place of the alleged violation, an appropriate sign, giving notice thereof, is not in proper position and sufficiently legible to be seen by an ordinarily observant person.

And section 1216 concludes with the proviso that no operator or driver of a vehicle violating any of the provisions of this act shall, upon conviction, be fined under any ordinance or resolution except on those matters concerning which authority is expressly delegated to local authorities by the act.

Municipal authorities must not overlook the requirements of section 1204:

“(a) All prosecutions for offenses defined in this act, except as otherwise herein provided, committed by any person shall be brought under this act, and not under any local ordinance, rule or regulation.
“(b) All prosecutions instituted under local ordinances, rule or regulation which are based on acts for which there is a specific penalty provided in this act shall be deemed and considered as having been brought under this act.”

The foregoing limitations must, of course, be borne in mind by municipalities in the enactment and the enforcement of their traffic ordinances.

Prom C. P. Addams, Harrisburg, Pa.


author: Chase, P. J.,

text:
    Commonwealth v. Milliren.

      Justice of the peace — Summary proceedings — Preliminary hearing- — Automobiles — Acts of June SO, 1919, and June lk, 1923.

    1. A defendant is not entitled to a preliminary hearing before a justice of the peace when he has taken advantage of the provisions of the Automobile Act of June 14, 1923, P. L. 718, amending the Act of June 30, 1919, P. L. 678, by giving a bond for appearance in the Quarter Sessions.
    2. In such case, the Court of Quarter Sessions will hear the case as a summary proceeding in banc, and not by way of indictment and trial by jury.
    3. Semble. A defendant may refuse to give the bond and elect to have the preliminary hearing before the justice of the peace; the purpose of the legislation is to give the defendant the election of his trier.
    Petition for declaratory judgment. Q. S. Clearfield Co., Sept. Sess., 1927, No. 129.

      A. L. Edwards, District Attorney, for Commonwealth.

      Arnold & Platt, for defendant.
    Aug. 19, 1927.
   Chase, P. J.,

This issue is before the court on petition of A. L. Edwards, Esq., District Attorney, praying the court for an interpretation by means of a declaratory judgment as to the provisions of a certain statute hereinafter set forth. The facts agreed upon are as follows:

1. That affidavit was made before John A. Dale, a justice of the peace, charging one Joseph M. Miliiren with violation of section 16 of the Act of June 14, 1923, P. L. 718, amending section 19 of the Act of June 30, 1919, P. L. 678, and charging the said defendant with the offense of operating a motor-vehicle in a reckless manner.

2. That, following the filing of said affidavit, the defendant was required to appear before John A. Dale, the said justice of the peace, to answer said charge; that the prosecutor, his witnesses and the defendant appeared before the said justice in answer to the said charge at the time and hour fixed.

3. That all proceedings in said cause up to this point are admitted to have been regular, and concerning said proceedings at this point no question is raised.

4. That the 27th section of the Act of June 14, 1923, P. L. 718, of the Commonwealth of Pennsylvania, amends section 23 of the Act of June 30, 1919, P. L. 678, and the said 27th section of the Act of 1923 reads as follows: “Section 33. Any person, except as specially provided in sections 3, 4 [10], 11, 14,15,16, 23, 24, 34 and 35, covering misdemeanors, convicted of violating any of the provisions of this act, shall be subject to a fine or penalty of not less than ten dollars nor more than twenty-five dollars, to be collected by summary conviction before any mayor, burgess, magistrate, alderman or justice of the peace, as like fines and penalties are now by law collected, or, in case of non-payment of such fine, to undergo an imprisonment in the county jail for a period not exceeding five days: Provided, That any person so convicted shall have the right of appeal as in other cases of summary convictions. ’ And further provided, That any person accused of violating any of the provisions of this act may waive summary hearing, and give bond, in a sum equal to double the amount of the maximum fine that might be imposed, for appearance for trial before a judge of the Court of Quarter Sessions, or in the County Court or in the Municipal Court in counties wherein such courts exist, and thereupon the burgess, magistrate, alderman or justice of the peace shall, within fifteen days, return the complaint or information to the said court; and if any person so accused shall be convicted in such court of the offense charged, he shall be subject to a fine of not less than ten dollars nor more than twenty-five dollars, or, in case of non-payment of such fines, to undergo imprisonment in the county jail for a period not exceeding five days.”

5. That upon the defendant appearing before said justice of the peace to answer said charge as aforesaid, the defendant, through his counsel, had noted on the record that the defendant elected that the cause should not proceed as a summary conviction and thereupon demanded a preliminary hearing with said justice sitting as committing magistrate.

6. The defendant avers that he is entitled, under the laws of this Commonwealth, to a preliminary hearing upon said charge and that he cannot be bound over to appear before the Court of Quarter Sessions without said preliminary hearing upon his demand for such a hearing.

7. The defendant further avers that, by reason of his election aforesaid, the cause must proceed as a misdemeanor and is triable before the Court of Quarter Sessions of Clearfield County, before said court with a jury.

8. The Commonwealth, by the district attorney, avers that if the defendant waived the summary hearing, he is entitled to no preliminary hearing, but must give bond for his appearance before a judge of the Court of Quarter Sessions of Clearfield County.

9. The Commonwealth, by the district attorney, further avers that upon the defendant giving bond for his appearance before a judge of the Court of Quarter Sessions, said cause is then tried before a judge of said court without a jury.

This petition, therefore, raises two questions under the facts:

1. Is the defendant entitled to the preliminary hearing before the justice of the peace?

2. If the defendant gives bond for his appearance before a judge of the Court of Quarter Sessions of Clearfield County to answer said charge, is the case tried in the Court of Quarter Sessions before a jury or the court in banc?

As to the first question raised, whether or not the defendant is entitled to a preliminary hearing, it will be noted the language of the act and the provision under consideration therein is that any person accused of violating any of the provisions of this act may waive summary hearing and give bond in a sum equal to double the amount of the maximum fine that might be imposed for appearance for trial before a judge of the Court of Quarter Sessions, or in the County Court or in the Municipal Court in counties wherein such court exists, and thereupon the burgess, magistrate, alderman or justice of the peace shall, within fifteen days, return the complaint or information to the said court, and if any person so accused shall be convicted in such court of the offense charged, he shall be subject, etc. As we view this language, the directions to the magistrate to return the transcript or information is mandatory and not conditional upon the determination of a preliminary hearing. If it was the intention of the legislature that a defendant was to have a preliminary hearing or entitled to one under this provision, it is a reasonable presumption that language to so indicate would have been used.

The language “may waive a summary hearing” must be interpreted keeping in mind that a defendant had only the right in summary convictions to do one of two things, plead guilty to the charge or demand a preliminary hearing, and with that fact in mind, it is apparent that the language “may waive” is inserted for the purpose of providing against a procedure which exists under the summary act which enables the defendant to have an additional right.

In determining the issue herein raised, a review of the conditions which brought about this unusual provision is of assistance and should be considered. It had become common knowledge that under the various acts of assembly passed regulating the operation of automobiles and imposing penalties in summary proceedings for violations of the provisions of the law, widespread complaint was being made, alleging that certain justices of the peace throughout the State, known as “fining squires,” were making a practice, in collusion with constables, to have informations made against citizens for automobile violations, and, without regard to the evidence at the summary hearing, were imposing fines, and the defendants were compelled to submit to the alleged injustice or to resist at great inconvenience and expense which the procedure on appeal under summary actions involved. As to the justification of this growing complaint of the alleged dishonesty of certain officers, it has no bearing on this issue; but the fact that such a public opinion developed of the existence of this alleged condition is relevant as the legislation under discussion was the outgrowth. This history of public sentiment leads to the conclusion that this provision of the act of assembly was inserted for the protection of a defendant against the alleged abuses hereinbefore mentioned and is a provision for his benefit.

This provision is not changing the organic law; it is not depriving the citizen of any right, but is creating an additional procedure to what already existed to protect his rights against the alleged evil which had grown up. The purpose of this provision, as we view it, is to give a defendant the election of his trier. If a defendant feels that he is not going to receive a fair adjudication of his issue by a magistrate, he may elect to have the court substituted in place of the magistrate. This in no wise is attempting to abridge a defendant of his rights under the' law, but rather enlarging procedure to protect his rights. There is nothing in the language of this provision under discussion which indicates that this election changes the nature of the action whatever; it is still a summary proceedings with an election by the defendant as to adjudication of guilt, whether that adjudication shall be in the first instance by a magistrate or a justice or a judge of the Court of Quarter Sessions or in the County Court or in the Municipal Court in counties wherein such court exists. That understanding may be gathered from the language of the court, as we view it, in the case of Com. v. Yerkes, 285 Pa. 39. In dealing with the constitutionality of this question, the court says (page 42): “The charge of an offense of a summary nature is one thing, the conviction thereof is quite another, as the latter is an adjudication of guilt.” With this thought in mind and taking into consideration the history which developed this legislation, together with the language of the provision, we feel that the correct interpretation to give to this procedure is that the action still remains summary in fact, but an additional procedure is given to a defendant, and that, upon the election of this additional procedure, it is an election to have some one other than the person before whom the information is made hear the evidence, and, therefore, a defendant charged with any of these violations, where the new procedure is created upon electing to remove an adjudication of the charge against him to another tribunal, is not entitled to a~ preliminary hearing, and that all the magistrate or burgess or alderman has to do concerning the matter, when the request is made and bond filed, is to return the information or transcript to the court which should hear the matter.

This conclusion disposes of the second question herein raised, whether the proceedings would be heard by the court in bane or should be heard by a jury under indictment. This still being a summary proceedings, as we view it, the matter would be heard by the court in banc.

Now, Aug. 19,1927, the judgment of the court as to the issues of law raised in this petition is as follows:

1. That a defendant is not entitled to a preliminary hearing before a magistrate when that defendant has taken advantage of the provision of the Act of June 14, 1923, P. L. 718, of the Commonwealth of Pennsylvania, amending section 33 of the Act of June 30, 1919, P. L. 678, and of said 27th section of said Act of 1923, which provision provides as follows: That any person accused of violating any of the provisions of this act may waive summary hearing and give bond in a sum equal to double the amount of the maximum fine that might be imposed for appearance for trial before a judge of the Court of Quarter Sessions, or in the County Court or in the Municipal Court in counties wherein such court exists, etc.

2. That under said provisions of the act of assembly, upon the information or complaint being returned to the Court of Quarter Sessions or such court as is designated under the act, the court hears the matter as.a summary proceedings, that is, in bane, and not by way of indictment and trial by a jury.

Exceptions noted and bill sealed to the defendant, Joseph M. Milliren.

From John M. Urey, Clearfield, Pa.


author: Hassler, J.,

text:
    Myers Accessory House v. Campbell.

      Suit on book account — Written or oral contract — Affidavit raising points of law — Fictitious name — Statement — Quantum meruit and express conr-tract — Fictitious Names Act of June 28, 1917, and Practice Act of May 14, 1915, P. L, 488.

      1. The objection that a statement does not set forth whether the alleged contract on which the suit is brought is oral or written cannot be raised on an affidavit raising a question of law, but must be taken on a motion for a more specific statement.
    2. It is not necessary, in an action on a book account, for the statement to set forth whether the alleged contract on which the suit is founded was oral or written.
    3. The objection that a plaintiff is trading and doing business under a fictitious name without registration under the Fictitious Names Act of June 28, 1917, P. U. 645, cannot be taken advantage of by affidavit of defense raising a question of law.
    4. Where a plaintiff uses his full name in business, the mere fact that he adds "trading as Myers Accessory House” does not bring him within the Fictitious Names Act.
    5. A statement in a suit for the price of goods sold is not objectionable where it sets forth an express contract and also that the price charged is just and reasonable; the latter phrase does not make the statement objectionable as claiming also under a quantum meruit.

    Statutory demurrer. G. P. Lancaster Co., Feb. T., 1927, No. 113.

      Daniel B. Strickler, for plaintiff.

      C. N. Bemtheizel and Charles W. Eaby, for defendant.
    July 2, 1927.
   Hassler, J.,

The affidavit of defense raising questions of law filed in this case raises three questions, or rather makes three objections to plaintiff’s statement. We will consider them in the order in which they appear in it. The first objection is that the plaintiff does not set forth in the statement whether or not the alleged contract on which the suit is brought is oral or written. This objection cannot be raised on an affidavit of defense raising a question of law, but must be taken on a motion for a more specific statement: Mann v. Mann, 38 Lane. Law Rev. 407.

As the suit is on a book account, however, it is not necessary to state whether the contract is written or oral. Section 9 of the Procedure Act of May 14, 1915, P. L. 483, provides that a statement of claim shall be as brief, as the nature of the case will admit. In actions of contract, it shall state whether the contract was oral or in writing. In Hine v. Horn, 30 Dist. R. 499, Judge Endlich, in passing upon this question, decided that in an action on a book account it is not necessary to allege whether the contract is oral or in writing. In considering the case of Machine Co. v. Clay Co., 29 Dist. R. 753, in which the contrary was held, and Bartlett Garages v. Kaier, 15 Schuyl. Legal Rec. 81, in which it was decided that it was not necessary, Judge Endlich said: “We think the better reason is with the last-named decision. Charges made in a book of original entry import both sale and delivery of the goods to the defendant (Hubbard v. Tenbrook, 124 Pa. 291, 295), and it is that which in a suit upon a book account constitutes the plaintiff’s cause of action. Except what the law implies, there is no contract, written or oral, about it, and, therefore, there is nothing to be averred on the subject under the above provisions of the Practice Act.” In Raub Supply Co. v. Forrest, 39 Lanc. Law Rev. 196, and Austin-Western Road Machinery Co. v. Herr et al., 40 Lanc. Law Rev. 266, this court followed this decision of Judge Endlich.

The second objection to it is that the statement shows that the plaintiff was trading and doing business under a fictitious name, without setting forth that he was legally authorized to do so under the Fictitious Names Act. It has been decided that this objection cannot be taken advantage of in an affidavit of defense raising a question of law: Hauer v. Foster Dining Co., 69 Pitts. L. J. 221.

The plaintiff in this case, however, does not come within the provisions of the Fictitious Names Act, for the reason that he uses his own name. In Walker v. Mason, 272 Pa. 315, in delivering the opinion of the court, Justice Frazer questions whether, in addition to making itself liable to the penalties prescribed in the Fictitious Names Act, a copartnership which has not complied with its provisions is also to be deprived of its right to recover in an action on a contract. The question, however, is not decided, because the plaintiff, as in this case, had not violated provisions of the act. The facts were that W. & H. Walker, some eighty years before, had organized a business under that name. After their death, a son and nephew of the plaintiffs continued the business under the same name. H. Walker, the nephew, added the woi’d junior to his name, but it did not appear in the firm name. In his opinion, Judge Frazer said: “As both parties used their individual names, there is nothing fictitious about the firm name under which plaintiffs did business. The identity of the members of the firm was fully disclosed and not in any manner concealed. Accordingly, the case is not within the mischief the Act of 1917 was intended to remedy. This distinction was recognized in Befarah v. Spell (N. C.), 96 S. E. Repr. 949, where it was held that a statute of North Carolina, forbidding the transacting of business under an assumed' name, unless a certificate giving names of owners should be duly filed, did not require a certificate to be filed by a firm doing business as ‘Aboud Bros.,’ and another doing business as ‘The Raleigh Bargain House, Nossif & Befarah, Proprietors,' the court saying: ‘In a case at the present term, Jennette Bros. Co. v. Elisha Coppersmith and Wife, 97 S. E. Repr. 54, the court held that where the style and title of the business containing the surname of the proprietors was such as to afford a reasonable and sufficient guide to a correct knowledge of the individuals composing the firm, the case did not come within the statute; this not being in any sense an ‘assumed name’ within the meaning and purpose of the law, ... we are of opinion that both of these firms . . . come within the principle of that decision. . . .’ In Carland v. Heckler, 233 Fed. Repr. 504, where a contract signed ‘The Lakeside Dredging Co. by’ the individual members, but expressly stated it was ‘by and between [H. & B.] copartners doing business in the firm name of Lakeside Dredging Co.,’ was held not to violate the act, the court saying (page 506) : ‘The pivotal question thus is, whether, in the absence of express statutory declaration to that effect, we should ascribe to the legislature an intention to forbid recovery by any copartnership under any contract it has made in compliance with law, where not only actual information of the- names of the copartners is given, but where the contract is made by such copartners in their full and true names, merely because the partnership was at the time engaged in business under an assumed name, and had not given constructive notice to the public of the names of members of the firm. Cashin v. Pliter does not answer this question. . . . The purpose of the statute, as stated by the Michigan Supreme Court, is ‘to protect the public against imposition and fraud, prohibiting persons from concealing their identity by doing business under an assumed name, making it unlawful to use other than their real names in transacting business without a public record of who they are, available for use in courts, and to punish those who violate the prohibition.’ . . . The instant case is not within the mischief which the statute is designed to prevent, for here there was no concealment, but, on the contrary, express disclosure of the identity of the copartners, and their real names were in fact used in the transaction involved.’ To the same effect and holding that partnerships openly using the true names or surnames of their members in their firm name in such manner as to fairly advise of the parties owning or conducting the business, and not to mislead, are not to be regarded under false, assumed or fictitious names. See Zemon v. Trim, 181 Mich. 130, and cases there cited.”

The plaintiff in this case uses his own full name in doing business. The mere fact that he adds to that “trading as Myers Accessory House” is not a violation of the Fictitious Names Act, as is clearly shown in the opinion of Judge Frazer, from which we have quoted. See, also, McLaughlin v. Baker, 39 Lanc. L. Rev. 207.

The third objection is that the plaintiff’s statement is defective, in that he claims on an express promise to pay, and also claims on a quantum meruit. In his statement plaintiff says: “At the special instance and request of the defendant, he sold and delivered to him goods, wares and merchandise in the amounts, of the kinds and prices set forth in a true and correct copy of the account taken from plaintiff’s book of original entries hereto attached and marked ‘Exhibit A,’ showing the price charged by the plaintiff for the goods, wares and merchandise are just and reasonable, and are the prices which the defendant promised to pay the plaintiff for them.’’ While he does aver that the price charged is just and reasonable, it was only done to show that he dealt fairly with the defendant, as he says they are the prices which the defendant promised to pay.

We do not think there is any merit in the affidavit of defense raising a question of lavs', and decide the questions so raised against the defendant and direct him to file an affidavit of defense within fifteen days of this date.

From George Ross Eshleman, Lancaster, Pa.

NOTE. — See Spector et al. v. Walcot Manuf. Co., 10 D. & C. 333.


author: Iobst, J.,

text:
    Moyer’s Estate.

      Decedents’ estates — Citation to account — Federal Employers’ Liability Act — Distribution.
    A petition íor a citation on an administrator to file an account will be denied where the only fund in hand is a sum realized on a suit under the Federal Employers’ Liability Act of April 22, 1908, 35 Stat. at L. 65, as such sum is not a part of the decedent’s estate, and, for distribution of the fund, the beneficiaries have a remedy in equity or in the Orphans’ Court.
    Petition for citation to account. O. C. Lehigh Co., File No. 18,905.

      Robert S. Taylor, for petitioner; Edwin K. Kline, for administratrix.
    June 20, 1927.
   Iobst, J.,

This is a petition for a citation to the adminis-tratrix to file her account in the above estate.

It is admitted that Raymond J. Moyer at the time of his death was a resident of Bethlehem, Lehigh County, Pennsylvania, on June 15, 1925, leaving to survive him his widow, Emily Moyer, and three minor children; that letters of administration in the estate were granted by the Register of Wills of Lehigh County to the widow, Emily Moyer, on Sept. 14, 1925; that the said Emily Moyer, as administratrix of the estate of Raymond J. Moyer, deceased, instituted an action in the United States District Court for the District of New Jersey against the Reading Company for fatal injuries sustained by the said Raymond J. Moyer while employed by the said Reading Company, which suit was brought under the Federal Employers’ Liability Act of April 22, 1908, 35 Stat. at L. 65, and at the trial on or about Oct. 30, 1926, received the sum of $17,000 in settlement of said suit for the benefit of the widow and the children of the deceased, as provided for in the Federal Act. In addition to the amount so received, the answer of the administratrix admits that decedent left a personal estate amounting to $400, which latter amount is insufficient to pay the funeral expenses and her allowable exemption. The petitioner is the guardian of the minor children and presumes that the amount recovered from the railroad, to wit, the said sum of $17,000, forms a part of decedent's estate for which the administratrix is liable to account to this court for final distribution. If this be the law, then the amount recovered would, of course, be first liable to the claims of creditors of the decedent. But the Federal Act, under which suit was instituted and recovery had, provides “that every carrier shall be liable in damages, in case of death of an employee, resulting in whole or in part from negligence, to his or her personal representative for the benefit of the surviving widow or husband and children of such employee, and, if none, then of such employee’s parents, and, if none, then of the next of kin dependent upon such employee.”

It would be a novel mode of administering relief to decedent’s dependents to appropriate the means intended for their relief to the payment of decedent’s debts.

As the money in question was never a part of decedent’s estate, she, the administratrix, is not accountable therefor in this court, and as the amount of the personalty in her hands belonging to his estate, not totaling more than $400, is insufficient to pay funeral expenses and her widow’s exemption, it, is needless to impose upon her,'in her poverty, the costs and expenses of preparing and filing an account. The petition for an order to file the same and for the account are dismissed. See Engles’s Estate, 21 Pa. C. C. Reps. 299; Kober’s Estate, 17 Dist. R. 184.

The trust under which the widow, as the personal representative, holds the damages recovered in her action may be enforced by the petitioner, as guardian of the minor children, in another proceeding. Either party may go into chancery for instructions as to the distribution of the trust fund which is to be distributed in accordance with the provisions of the Federal Act, or they may proceed in the Orphans’ Court for the distribution of the recovery among the beneficiaries, as above indicated. See 17 Corpus Juris, 1226, § 69. The costs of this proceeding to await final disposition of the fund.

Decree. — Now, June 20, 1927, the petition for a citation is denied.

From Edwin L. Kohler, Allentown, Fa.


author: Koch, J.,

text:
    Gray v. Philadelphia & Reading Coal and Iron Co. et al.

      Negligence — Joint tortfeasors — Release of one tortfeasor.

    1. The principle that the release of one joint tortfeasor is a release of all does not apply where there was no joint negligence by the party released.
    2. Where a plaintiff wishes to sue joint tortfeasors, he may sue each one separately, but he can have but one satisfaction; a failure to sue some tortfeasors is not a release of those who are sued.
    3. Where a bill in equity is filed by a land owner against several coal-mining companies, operating on a river, to restrain them from depositing mine refuse in the river and for damages, the defendants are not joint tortfeasors, inasmuch as the cause of action is not the same against each one, but is only similar.
    4. In such case, each defendant’s act is separate and independent, and each defendant is liable only for the damage done by him or it.
    5. If the plaintiff omits parties who, under Equity Rules 16 and 17, should have been joined as defendants, the court will make the omitted parties additional defendants.
    Amended bill for injunction. Preliminary answers to the bill. C. P. Schuylkill Co., March T., 1925, No. 2, in Equity.

      A. D. Knittle and George M. Gerber, for plaintiff.

      John F. Whalen, George M. Roads, Roscoe R. Koch and M. M. Burke, for defendants.
    Sept. 12, 1927.
   Koch, J.,

The original bill of complaint included the Schuylkill Valley Coal Company, the Darkwater Coal Company and the Alliance Coal Company as defendants, but they have been omitted in the amended bill of complaint, and the plaintiff has added the Repplier Coal Company, South Penn Coal Company and Madeira-Hill & Company as defendants.

The plaintiff is the owner of certain real estate abutting the Schuylkill River in Port Carbon. The defendants are anthracite coal mine operators, whose mines are located on the banks of said river or on tributaries thereto. In mining, preparing, washing and cleaning coal, the defendants discharge into said river and its tributaries certain mine refuse, or place it so near to the said stream and its tributaries that it is carried into the same by ordinary rains and finds its way on to the property of the plaintiff, to her injury and damage. There are also large banks of such refuse on some or all of the properties operated by the defendants, from which said banks refuse is carried into said stream by ordinary rains.

The main purpose of the bill of complaint is to obtain a restraining order against all the defendants to prevent them from depositing mine refuse in such position as to find its way into said river and its tributaries, and incidentally to have the damages suffered by the plaintiff apportioned among and adjudged against the respective defendants.

The Philadelphia & Reading Coal and Iron Company, the Saint Clair Coal Company, the Bell Colliery and the Repplier Coal Company have filed preliminary objections to the amended bill, averring as a ground “that, inasmuch as the original bill averred that the defendants originally named were jointly responsible for the alleged damage to the complainant’s property, the amended bill cannot be maintained, for the reason that the complainant, by excluding certain operators alleged to be jointly liable with the other operators named as defendants, has thereby released the other alleged joint tortfeasors, and that the complainant may not proceed in equity against” these four parties who filed preliminary objections.

The principle that the release of one tortfeasor is a release of all, as stated in Conway v. Pottsville Union Traction Co., 253 Pa. 211, does not apply to this case. It is there said that “the test in determining whether or not a release or satisfaction in one proceeding (founded on a negligent act) is a bar to another for the same cause of action is whether there was joint negligence by the party released.” But the negligence is not joint in this case, and a release of one is not a release of the others: Gallagher v. Kemmerer, 144 Pa. 509.

“It is a settled rule that whenever satisfaction has been received from one of several joint tortfeasors, all are thereby discharged,” and where the cause of action in trespass against several or more defendants is the same, the defendants are joint tortfeasors: Peterson v. Wiggins, 230 Pa. 631, 633. Even though they may be separately sued: Conway v. Pottsville Union Traction Co., 253 Pa. 211; Smith v. Roydhouse, Arey & Co., 244 Pa. 474; Johnson Co. v. Philadelphia, 236 Pa. 510; Thorp v. Boudwin, 228 Pa. 165. Where a plaintiff wishes to sue joint tortfeasors, he may sue each one separately, but he can have but one satisfaction: Conway v. Pottsville Union Traction Co., 253 Pa. 211. So a failure to sue some tortfeasors is not a release of those who are sued. In all the cases relied upon by these defendants satisfaction was made with one of the joint tortfeasors, and such satisfaction inured to the benefit of each of the other joint tortfeasors. They were all accident cases. Besides, the defendants in this equity case cannot be properly called joint tortfeasors, because the cause of action is not the same against each one. The cause of action is only similar in all the cases. Each defendant’s act is separate and independent, and each defendant is liable only for the damage done by him or it: Gallagher v. Kemmerer, 144 Pa. 509. “That the defendant is not responsible for the wrongful acts of others cannot be questioned. If the deposit complained of was carried down from other coal operations than those^managed by the defendant, the latter cannot be charged with the consequence of the fault of others:” Pierce v. Lehigh Valley Coal Co., 40 Pa. Superior Ct. 566, 571. See, also, Pierce v. Lehigh Valley Coal Co., 232 Pa. 165, in which the jury held the defendant had contributed 40 per cent. to the plaintiff’s damages. While each one is a tortfeasor, all of the others are in no sense joint tortfeasors, because the cause of action is not identical, although the cause of action in each case is similar to the cause in all the other cases. If each defendant were to haul mine refuse upon plaintiff’s property without her consent, it should be apparent that each defendant would be obliged to pay her only the damages resulting from such defendant’s separate and independent hauling of mine refuse; and satisfaction from one defendant could not possibly work satisfaction for all the other defendants. Therefore, if the refuse is delivered on the plaintiff’s property by a stream of water instead of hauling, the remedy of plaintiff is exactly the same and her right of compensation is not changed by the mode of delivery of the mine refuse. Her remedy is the same in either case, and compensation from each defendant for his proportionate amount of the total injury is all that she can claim from each one separately. All these defendants cannot be made j.oint tortfeasors by the mere averment in the bill of complaint that the plaintiff’s damage is “the single, united and combined act of all the defendants.”

- But as Equity Rule 16, in part, provides (except in certain cases) that “All parties primarily liable to plaintiff, in case of a successful prosecution of a suit in equity, shall be made either plaintiffs or defendants in the proceedings, unless they represent a class so numerous as to render it inconvenient to include them all,” etc., and Rule 17 says, “At any stage of the suit, the court may direct the joinder of additional parties if it is deemed essential in order that justice and equity may be done, and may stay the proceeding until compliance with this requirement,” and Rule 18 provides, “Where plaintiff has a claim against several persons, either as principals or sureties, whom he may sue separately or together, he may in equity proceed against such of them only as he would be required to sue, if suing at law, but those named may, by their answers, make the omitted parties additional defendants,” etc., we will now make the omitted parties additional defendants. We do this the more particularly because the second prayer of the defendant’s bill asks “that the amount of damage sustained by the said plaintiff ... be ascertained, and that the amount so ascertained be assessed against each defendant in proportion to his contribution to the plaintiff’s injury or damage.”

Such joinder will conform with the doctrine stated in this case when it was carried up to the Supreme Court, as found reported in 286 Pa. 11, because it will save a multiplicity of suits and will promote the convenience of the court and of all parties. And especially so, in view of the fact that the Supreme Court said on page 16: “When once the jurisdiction has thus attached, equity will proceed to round out the whole circle of controversy, by deciding every other contention connected with the subject-matter, including the amount of damages to which plaintiff is entitled because of injuries theretofore sustained.”

And now, Sept. 12, 1927, the preliminary objections to the bill by the Philadelphia & Reading Coal and Iron Company, the Saint Clair Coal Company, the Bell Colliery and the Repplier Coal Company are dismissed; the Schuylkill Valley Coal Company, the Darkwater Coal Company and the Alliance Coal Company are added as parties defendant; the complainant’s bill is directed to be amended accordingly, and thereupon each of the defendants shall be allowed thirty days to make answer to the bill on its merits after service of the same.

NOTE.—See Gray v. Phila. & Reading C. & I. Co. et al., 286 Pa. 11.