author: Landis, P. J.,

text:
    Futer v. Futer.

      Robert Ruppin, for rule; Guy K. Bard, contra.
    April 13, 1929.
   Landis, P. J.,

The plaintiff’s statement sets forth that she and the defendant are husband and wife, they having been married on Jan. 6, 1927; that on March 30, 1927, they became seized by entireties of certain real estate situated in the Township of Manheim, in this county; that they lived together until Oct. 25, 1927, when the defendant, by cruel and barbarous treatment and indignities, drove the plaintiff from their joint home; that since that time they have not cohabited together; that on Jan. 1, 1928, the defendant leased the said premises to Walter Steiger for six months, and the tenant remained on the same and paid the rent to the defendant. She, therefore, claims that she is entitled to recover in this suit the sum of $105, with interest.

The affidavit of defense avers that, while living amicably with the plaintiff, upon his coming home from his work he found the plaintiff had left their home and taken with her everything except his clothing; that when they purchased the property they gave the vendor a joint mortgage and bond for $3500; that he collected only $175 from Walter Steiger, and out of this he paid $69.90 for plumbing and papering done to the house, and the balance was paid to the mortgagee.

In 2 Blackstone’s Comm., 182, it is said: “If an estate in fee be given to a man and his wife, they are neither properly joint tenants nor tenants in common, for husband and wife being considered as one person in law, they cannot take the estate by moieties, but both are seized of the entirety, per tout et non per my; the consequence of which is that neither the husband nor the wife can dispose of any part without the assent of the other, but the whole must remain to the survivor.” Likewise, in 21 Cyc., 1195, it is said: “At common law, owing to the doctrine of identity of husband and wife, a conveyance or devise of lands to them during coverture does not create a joint tenancy or a tenancy in common, which estates necessarily require more than one tenant, but such conveyance or devise creates an estate in entirety. This estate is confined to the relation of husband and wife and takes its name from the fact that neither spouse takes by shares, by moieties, but each is seized of the whole, or per tout, and not per my, or, in other words, of the entire estate.” In Bramberry’s Estate, 156 Pa. 628, Mr. Justice McCollum, delivering the opinion of the court, said: “A tenancy by entireties arises whenever an estate vests in two persons, they being, when it so vests, husband and wife. It may exist in personal as well as real property, in a chose in action as well as in a chose in possession. . . . The common law rule is that the words which in a conveyance to unmarried persons constitute a joint tenancy will create, if the grantees are husband and wife, a tenancy by entireties.” It was held in Alles v. Lyon, 216 Pa. 604, and in other cases, that this tenancy was not affected by either the Act of March 31, 1812, 5 Sm. Laws, 395, or by the Act of April 11, 1848, P. L. 536.

If this be true, it would seem to follow that the defendant had the right to lease and collect the rent for the joint property. In Fairchild v. Chastelleux, 1 Pa. 176, it was decided that the husband could maintain in his own name an action qvxire clausum fregit for cutting down and carrying away timber from the property held in entirety by husband and wife.

Does, then, an action lie on the part of the wife against her husband for half of the rent thus received? It may be assumed as correct that, under the common law, she could maintain no such action. If she can now do so, it must be by reason of some statutory enactment. The Act of May 1, 1913, P. L. 146, declared that “from and after the passage of this act, any wife who has been deserted, abandoned or driven from her home by her husband may sue her husband civilly in any court of this Commonwealth having the jurisdiction, upon any cause of action now existing or hereafter accruing, with like effect as if such wife were a feme sole, and in such case the wife shall be a competent witness against the husband. Provided, however, that nothing in this act contained shall be deemed to destroy the right of survivorship in any land heretofore or hereafter conveyed to such wife and husband jointly.” It is clear that in this case this statute cannot be applied. The facts included in the affidavit of defense must be now assumed to be true, and as the defendant alleges that the plaintiff deserted him and he did not desert her, the necessary facts to make the above act effective are absent.

The question, however, as to their various rights is discussed at some length by Mr. Justice Simpson in O’Malley v. O’Malley, 272 Pa. 528. He there said: “Before the passage of the various statutes relating to the property of a married woman, a husband who held with his wife an estate by entireties had absolute control of it and its income exactly as if he were the owner in fee; he could alien it and the purchaser would obtain an estate for the life of the •husband, and an absolute estate in remainder if the latter survived his wife. If waste was committed, he could sue in his own name and for his sole benefit . . . even though the effect of the waste was to render practically valueless the property which would be the wife’s if she survived him. . . . This, however, was not an incident of the estate by entireties, but of the marital relation, and applied to the property of the wife whether owned in fee simple or otherwise. All this was changed, however, by these acts, and though the estate by entireties remained as theretofore ... a purchaser of the husband’s interest acquired no right of possession during the wife’s life, either alone or with her. . . .” He then proceeded: “In view of those statutes (which were in force when the deed to plaintiff and defendant was made), who is entitled to the rent of a property held by entireties? Because of the unity of person and estate existing during marriage, either spouse may lease it and collect the rent; but this is so, not because the right to do it is an incident of the estate; on the contrary, it only flows from an incident thereof. While the marriage subsists, it is a matter of indifference which of the parties leases the property or which of them obtains the rents; presumptively, the moneys received will be expended for the benefit of both of them. The unity of the relation of the parties results in a unity of the estate; the leasing by either is for the benefit of them in that relation, and the rents paid to either is to him or her in that relation only.”

Now, if this be true, has the one who collects the rents the right to pay out of them as received for proper repairs of the property out of which the rents spring? In the affidavit of defense, these facts are alleged, and if they can be proven on the trial, it seems to me the defendant will present a proper defense. Or has such receiver the right to pay on account of interest on a mortgage given by them against the joint property if the same was so done in good faith? Is it possible that the one who receives the rents must divide with the wife or husband and pay for all the repairs and other expenses out of his or her own pocket? I think that proposition answers itself.

For these reasons, this rule for judgment is discharged.

Rule discharged.

From George Boss Eshleman, Lancaster, Pa.


source: Caselaw Access Project

author: O’Hara, Dep. Att’y-Gen.,

license: Public Domain

text:
    In re State Employees’ Retirement Fund.
    July 25, 1929.
   O’Hara, Dep. Att’y-Gen.,

I have your request, under date of July 20, 1929, for a formal opinion covering the application of George A. Moser for original membership in the State Employees’ Retirement System.

We are advised that George A. Moser has been employed by the Pennsylvania State Sanitorium at Mount Alto since 1907. The record of his State service shows that he was employed during the years 1908 to 1928, inclusive, during a period of twelve months in each year; that during the years 1913, 1914, and three months of 1915, and the year 1924, and three months of 1925, his compensation was upon a monthly rate; that during the balance of the term of his employment his compensation was based upon an hourly rate; that from January to April in 1929 he was absent on leave without pay, and on April 1, 1929, he was again placed upon the pay-roll and his compensation based upon an hourly rate.

Under date of May 23, 1929, Mr. Moser made application to the State Employees’ Retirement Board for membership in the association, created under the provisions of the Act of June 27, 1923, P. L. 858, as an original member. The board is in doubt as to the applicant’s eligibility and requests this opinion.

On May 23, 1929, eligibility for membership as an original member in the association was fixed by section 1, paragraph 6, and section 1, paragraph 9, of that act, as amended by the Acts of April 6, 1925, P. L. 147, April 25, 1927, P. L. 387, and April 26, 1929, No. 369 [P. L. 844].

Following the passage of Act No. 369, approved April 26, 1929, amending the original act creating the association, a State employee might become an original member of the association upon application on or before Oct. 1, 1929, and a State employee was defined by the terms of that act to be “any person holding a State office under the Commonwealth of Pennsylvania, or employed and paid on a yearly or monthly basis by the State Government of the Commonwealth of Pennsylvania, in any capacity whatsoever. . . .”

Mr. Moser is, and was on May 23, 1929, a State employee, but he was not and is not paid on a yearly or monthly basis by the State Government of the Commonwealth of Pennsylvania ['It is not necessary under the state of facts submitted to us, and we do not express any opinion as to the eligibility of Mr. Moser had he applied for membership in the association prior to Dec. 31, 1928, but]. We are of the opinion, and so advise, that he was not eligible for membership, either as an original member or as a new member, on May 23, 1929, because he was not then employed and paid on a yearly or monthly basis.

From C. P. Addams, Harrisburg, Pa.


author: Windle, J.,

text:
    Bogle v. Pratt.

      W. S. Harris, for plaintiff; T. D. Wade, for defendant.
    Sept. 29, 1929
   Windle, J.,

A voluntary non-suit having been suffered in this case at the April, 1929, term of court, defendant filed his bill of costs for the three terms at which it was on the trial list. The costs included therein were taxed by the prothonotary on July 11, 1929, and on the same clay defendant filed this appeal, with the grounds of his objections, not under oath.

Plaintiff objects to the charge for serving subpoenas at each of the terms above referred to in the amount of $15.35, and to the charge of witness fees and mileage for Dr. C. J. Marshall and Dr. D. E. Hickman, witnesses subpoenaed by defendant, whom, he asserts, were unnecessarily summoned.

Our rule of court on the subject, to wit, Rule VI, section 4, provides as follows: “The affidavit of the party, or other person, to the correctness i-f fhe bill and the attendance and materiality of the witnesses shall be annexed, and shall be prima facie evidence to the taxing officer.” The affidavit to the bill of costs is, therefore, prima facie evidence of the correctness of the charges made in the bill, and, if not rebutted, is conclusive: Patterson v. Anderson, 1 Pa. C. C. Reps. 86. No exceptions or objections under oath were filed and no testimony presented to deny the propriety of the items complained of. Under these circumstances, the court has nothing before it upon which to decide that the costs were not correctly taxed — nothing to rebut the presumption raised by the affidavit of defendant to the bills. As a matter of fact, from the number of witnesses summoned and the mileage claimed by them— not complained of — it would seem that the charge for serving the subpoenas on them was not excessive, the rates being those fixed by the Sheriff’s Fee Bill of 1901: Kottcamp v. York County, 28 Pa. Superior Ct. 96. Nor do we believe the objection to subpoenaing the two doctors as witnesses could be sustained. The defendant clearly was justified in calling to his assistance at least two reputable verterinary surgeons to testify, if they could, that defendant’s treatment of the horse in question, as described from the witness-stand by preceding witnesses, was proper and in accordance with good practice— was not negligent, as alleged by plaintiff — and the charge for their attendance in court was properly made. Consequently, we are of opinion that, aside from any question of failure of proof, but on the merits of the case as we understand them from the record and statements of counsel at the time of argument, these objections cannot be sustained. Appeal dismissed.


author: Martin, P. J.,

text:
    Johnson v. Hermann et al.

      Bryan A. Hermes, for plaintiff; William W. Smithers, for defendants.
    Dec. 10, 1929.
   Martin, P. J.,

— Plaintiff obtained a judgment in an action of trespass against Andrew Hermann, Jr., the defendant, for damages caused by a collision between automobiles.

Andrew Hermann, Sr., the father of the defendant, held a policy of indemnity issued by the Continental Casualty Company, indemnifying him as the proprietor of a public garage.

Plaintiff issued an attachment execution against the Continental Casualty Company. Interrogatories were filed by plaintiff, and the garnishee filed answers.

The garnishee was asked: “Did you, on Oct. 15, 1926, have outstanding any policy of insurance or indemnity issued to Andrew Hermann, Jr., or to Andrew Hermann, insuring or indemnifying Andrew Hermann, Jr., or Andrew Hermann, against loss by reason of any injury inflicted upon any person by any automobile or automobiles owned by the said Andrew Hermann, Jr., or Andrew Hermann. If your answer be yea, attach thereto a copy of all such policies as were outstanding or in effect on Oct. 15, 1926, and state whether or not said policy is still outstanding and what is its present status, and what happenings brought about its present status.” To this interrogatory the garnishee replied, “No.” A further interrogatory inquired: “Was any claim or demand made by Andrew Hermann, Jr., or Andrew Hermann, requesting or requiring your company to represent the said Andrew Hermann, Jr., or Andrew Hermann, in conjunction with a claim made by one Francis H. Johnson, which grew out of an automobile accident on Oct. 15, 1926? If your answer be yea, explain when and how such claim for insurance protection or indemnity was made upon you and by whom, and what answer was made thereto.” The garnishee replied: “That it received a telephone message from a broker, who informed it that said accident mentioned in said interrogatories had occurred while the defendant, Andrew Hermann, Jr., was driving the said automobile, which was the property of Andrew Hermann, Sr., and requesting that the said Andrew Hermann, Jr., be aided by the company, garnishee.” To this request, said agent or broker was informed that the Continental Casualty Company, garnishee, had not issued any policy of insurance or other indemnity covering said accident. At the request of the said agent or broker that aid be given to the said defendant, the said company informed the said broker that, inasmuch as it had issued a policy of insurance to the father of the said defendant, Andrew Hermann, Sr., covering his garage business, it would, as a matter of business policy and courtesy to the policy-holder, permit its counsel, William W. Smithers, to grant courtesy defense to the said Andrew Hermann, Jr., and as the matter was then in suit, to wit, Francis R. Johnson v. Andrew Hermann, Jr., C. P. No. 5, December Term, 1926, No. 1061, that it could not defend the case until the said Andrew Hermann, Jr., and Andrew Hermann, Sr., had executed a non-waiver of liability agreement, understanding and acknowledging that the said accident was not covered by the said policy issued to Andrew Hermann, Sr. Copy of said non-waiver of liability agreement was thereto attached as Exhibit “A.” The attorney, W. W. Smithers, attended the trial and defended the case on behalf of Andrew Hermann, Jr. A verdict was rendered in favor of plaintiff, upon which judgment was entered.

A copy of the policy of indemnity issued by the garnishee to Andrew Hermann was filed of record. By the terms of the policy the Continental Casualty Company agreed to indemnify Andrew Hermann against loss from the liability imposed by law upon the insured for damages on account of bodily injuries, including death, resulting therefrom, accidentally suffered or alleged to have been suffered within the policy period by any person or persons not employed by the assured; (1) by reason of the ownership, maintenance or use (including loading or unloading) of any of the automobiles covered by this policy as described in the schedule; (2) while within or upon the premises described in the schedule or upon the sidewalk or other ways immediately adjacent thereto by reason of the maintenance and operation of the business described in the schedule. B. To indemnify the assured against loss from the liability imposed by law upon the assured, for damages on account of injury to or destruction of property of every description, including resultant loss of use thereof by reason of (la) any accident occurring within the policy period on or about the premises described in the schedule and caused by the operation of the business of the assured as described therein; (2) “any accident elsewhere than on the premises of the assured if caused by or resulting from the ownership, maintenance or use (including loading or unloading) of any automobile covered by this policy as described in the schedule.”

The schedule contained the name of the assured as Andrew Hermann, and he was insured as an individual. The automobiles covered by the policy were those used by the insured in connection with the business operations of the assured for all purposes in said business and for their use and accidents resulting from the use of any automobile by proprietors or active executive officers who were covered only in the event that the names of said proprietors or active executive officers were written upon the schedule, and the annual remuneration was included in the estimated total remuneration for each such proprietor or active executive officer.

The list of proprietors or active executive officers contained the name of Andrew Hermann, Jr.

The accident that was the basis of the suit occurred when Andrew Hermann, Jr., was operating an automobile that belonged to his father, Andrew Hermann, Sr., which Andrew Hermann, Jr., was using for his own pleasure, not connected with the business of his father.

No liability attached to Andrew Hermann, Sr., by reason of this accident. The suit was instituted and the judgment obtained against Andrew Hermann, Jr.

Malley v. American Indemnity Co., 297 Pa. 216, was cited by plaintiff’s counsel as supporting the claim against the Continental Casualty Company, by reason of the fact that the counsel of the company appeared at the trial representing Andrew Hermann, Jr., and defended the suit against him.

In the opinion delivered in Malley v. American Indemnity Co., supra, it was said: “In such cases, after a recovery of a judgment against the insured, the party injured may have a remedy against the company by garnishee process or by resort to a suit in equity,” citing Fentress v. Rutledge, 140 Va. 685, and other cases, and that “the insured may sue the company directly after judgment and before he pays anything, or his creditor may institute garnishment against the company.”

In the instant case there was no claim or judgment against the insured, and he could present no lawful claim for indemnity against the casualty company. The act of counsel for the company in defending the case brought against Andrew Hermann, Jr., did not create a new contract to indemnify him in addition to his father.

The policy provided that the liability of the company should be limited to the amounts and in the manner provided in the schedule, and that the company should have no liability for which a premium had not been designated in the schedule. The schedule contains the name of the insured as Andrew Hermann, and the automobiles covered by the policy are all authomobiles used by the insured in connection with his business operation and for all purposes of such business and for assured’s use. But the claim in the present case was for damages caused by the negligence of the son of the insured. He was not covered by the indemnity policy.

And now, Dec. 10, 1929, the rule for judgment against the Continental Casualty Company, garnisheee, is discharged.


author: Henderson, J.,

text:
    French’s Estate.

      Francis Skunk Brown, for exceptions; Robert F. Irwin, Jr., contra.
    Dec. 20, 1929.
   Henderson, J.,

— These exceptions raise a single question— i. e., had the surviving child of the testator the right to terminate the trust?

By paragraph 17 of his will the testator directed as follows:

“Should the majority of my children then living at any time think it best to have the trust established by this will dissolved they can do so by their written direction and consent addressed to the trustees of my estate for that purpose; provided, however, that the trust established and hereby confirmed for my son, Emmor D. French, shall be absolute, and the income arising from the same shall be for his own personal benefit and in no way liable for his debts, contracts, or engagements, whether by way of assignment, anticipation or otherwise whatsoever, and in case of his death, the income from said portion of my estate which would have gone to my son, Emmor D. French, were he alive, shall be paid unto his children, share and share alike; and in case of the death of any one or more of his children without legal issue, then to the survivors or survivor of them.”

The exceptant urges that the one surviving child is not a majority of the children now living. It is more than a majority, in that it is all the children now living. Some one has claimed that he and the Almighty made a majority; but in this case we have a majority without the addition of the Almighty.

The exceptions are dismissed and the adjudication is confirmed absolutely.


author: Iobst, J.,

text:
    Praid v. Klein Motor Car Company.

      Orrin E. Boyle, for plaintiff; Martin L. Yost, for defendant and motions.
    March 4, 1929.
   Iobst, J.,

— On Aug. 14, 1923, plaintiff agreed to buy a Maxwell sport touring-car from the defendant for $1125. Defendant’s salesman agreed to take in payment plaintiff’s Stearns-Knight touring-car at an agreed price of $375 and the balance in cash. Pursuant to this agreement, the plaintiff delivered the Stearns-Knight car and $50 in cash to the defendant on Aug. 14, 1923. Subsequently, to wit, on Aug. 25, 1923, another agreement was entered into between the plaintiff and defendant by one Clayton A. Klein, vice-president and treasurer of the defendant corporation, at which time plaintiff paid an additional $50 on account of the purchase price. While this agreement bears the signature of the salesman, the uncontradicted evidence shows that the name of the salesman was in fact affixed thereto by the said Clayton A. Klein. On this agreement Klein noted plaintiff’s cash credit and allowance of $375 for his car, making a total allowance of $475 as a credit on the purchase price. In this agreement it is also stipulated that the defendant is to make delivery of the Maxwell car on or about April 2,1924, at which time plaintiff was to pay the balance due. On April 2, 1924, the plaintiff tendered to the defendant his certificate of title to the Stearns-Knight car and the sum of $650, balance due under the contract, but delivery of the Maxwell car was refused. Plaintiff then sued for breach of contract.

There is no doubt as to the defendant’s acceptance of plaintiff’s car, for it is admitted that the defendant later sold the car to another party at a price of $375, accepting a deposit of $50 on that sale. Sometime in November, 1923, the Stearns-Knight car, badly damaged and unfit for use, was placed in front of plaintiff’s home by some undisclosed party, and was later towed away by plaintiff. As a defense for non-compliance with the contract, the defendant alleges that the salesman was not empowered to enter into the agreement of Aug. 14,19-23, and that the Stearns-Knight car was delivered to it merely for the purpose of selling the car for plaintiff to some prospective customer, and, not being able to effect such sale, the car was returned to plaintiff. At the trial, Clayton A. Klein, however, testified that the defendant actually sold the car for $375, accepting a deposit on it, but that the car was later returned for want of a certificate of title.

The verdict was in favor of the plaintiff for $475, with interest from April 2, 1924, total verdict being for $502. Defendant then filed motions for a new trial and for judgment n. o. v., and the case came on for argument. The disposition of these motions is now before us. We will confine our review specifically to the questions raised.

In support of its motion for judgment notwithstanding the verdict, defendant claims that there is no evidence upon the record to show that plaintiff tendered either a vendor’s affidavit or a certificate of title, as required by law, at the time of the delivery of the car to the defendant. In answer to this complaint, we say that the contract was an executory contract, not enforceable until on or about April 2, 1924, at which time the uncontradicted testimony shows that plaintiff did tender a legal certificate of title as required by the Act of May 24, 1923, § 4, P. L. 425, and tendered $650, the balance due under the contract. If defendant in the first instance accepted the car without the certificate of title, it cannot now say that the plaintiff was in duty bound to deliver the certificate until the legal requirements of the contract obligated him to do so, to wit, on or about April 2, 1924, when the sale was to be consummated, the act stating that the certificate is to be delivered at the time of the sale or delivery thereof. Defendant could not claim title to the StearnsKnight car until it had complied with the terms of the contract, to wit, the delivery of the Maxwell car.

On its motion for a new trial, defendant alleges as error permission to read into the record paragraph 14 of the statement of claim and the corresponding paragraph in the affidavit of defense. The answer was a bald denial, and a further reference to paragraph 16 of the affidavit. An examination of paragraph 16 discloses no answer to paragraph 14, and, therefore, we held this paragraph admissible under the Practice Act: See Buehler v. U. S. Fashion Plate Co., 269 Pa. 428. A further objection is raised in regard to the charge of the court relative to ratification of the contract by the defendant of the act of its salesman and the affirmance by the court of the plaintiff’s second point for charge relative to ratification. Under the facts of the case, the question of ratification of the contract was properly submitted to the jury. Defendant raises the further objection that the measure of damages submitted to the jury as to the value of the Stearns-Knight car was erroneous. The value of plaintiff’s car was fixed by the parties. For the Maxwell car, plaintiff was to pay money and a commodity — an automobile. The measure of damages was the price agreed upon for plaintiff’s car and the money deposited by him on account of the purchase price.

In the case of Gloekler v. Painter, 272 Pa. 131, 134, the Supreme Court says: “In the present case, the second-hand automobile was purchased by appellant for $1600, and he took possession of it and used it for a considerable time; in effect, there was a payment of this sum on account of the new car contracted for. If a vendor has sold goods and made delivery, it is clear that the measure of damages for non-payment would be the stipulated price: Ballentine v. Robinson, 46 Pa. 177, 179. With like reason, the vendee who performs or tenders performance of his obligation under a contract, when the vendor is unable to carry out his part of the agreement, may rescind and recover any portion of the purchase money he may have paid: Rugg v. Midland Realty Co., 261 Pa. 453; Terry v. Wenderoth, 147 Pa. 519; 24 Ruling Case Law, 65. Here, cash was not turned over, but an automobile at an agreed price, and the same rule should control. “The measure of damages for breach of a contract to pay a fixed sum in a particular commodity or specific articles of property is the sum stated, and the value of the commodity at the time of the breach is not material:” 17 Corpus Juris, 865. The defendant was to pay for the old ear by the delivery of one that was new, in which event he was to receive an additional amount of money. He has failed to comply with his agreement; as a result, he must pay the stipulated value of that which he received and converted to his own use: Cf. Goodwin v. Heckler, 252 Pa. 332. See, also, Luck v. McNeil, 86 Pa. Superior Ct. 396.

Defendant’s motions are, therefore, overruled.

Decree of court.

Now, March 4, 1929, defendant’s motions for a new trial and for judgment notwithstanding the verdict are overruled.

From Edwin L. Kohler, Allentown, Pa.


author: Groff, J.,

text:
    Reese v. Reese.

      Harold G. Ripple, for libellant and rule.
    April 13, 1929.
   Groff, J.,

— When this case was presented to the court for the approval of the master’s report, the court disallowed the divorce and placed thereon this endorsement: “And now, June 18, 1928, this application for divorce is refused and dismissed. The libellant is a minor, and cannot sue in her own name under the circumstances presented.”

A rule was then granted to show cause why the divorce should not be granted, and that rule is before us for disposition. The depositions show that Emma E. Reese, the libellant, is eighteen years of age. She was, therefore, a minor at the time she filed the libel, and the question arises, can she sue for this divorce without joining a guardian or next friend?

Her counsel relies entirely upon the Act of June 11, 1879, § 2, P. L. 126, and contends that that act of assembly entitles her to sue for a divorce without joining a guardian or next friend. An examination of the title of the act shows that its purpose is as follows: “An act relative to actions brought by husband and wife, or by the wife alone, for her separate property in cases of desertion.”

Section 1 of the act has been repealed. Section 2 of the act reads as follows : “That in all cases where a wife has been deserted, abandoned or driven from her home by her husband, it shall be lawful for her to bring suit in any of the courts of this Commonwealth against her husband or any other person or persons without the assistance or intervention of a trustee or next friend, or may assign, transfer or endorse over to any person or persons any mortgage, bond, judgment, promissory note or other evidence of indebtedness against her husband or any other person, in same manner and with like effect as if she were sole and unmarried, shall also be entitled to the privileges and be liable for costs as other plaintiffs.”

There is nothing in this section that will enable her to sue her husband for a divorce, and we cannot reach that conclusion by any stretch of the imagination. In fact, the title of the act confines actions brought by a minor wife, in case of desertion, to those for the recovery of her separate property.

We, therefore, refuse the divorce for the reason that libellant, being a minor, could not sue to obtain the same in her own name.

In this we are supported by Bruder v. Bruder, 9 D. & C. 80, where Reno, P. J., says, and we think rightfully: “The master recommends a divorce, holding that the Act of June 11, 1879, P. L. 126, empowers a married woman to institute suit against her husband without the intervention of a trustee or next friend. But our master failed to discern that a married woman minor is under two disabilities, i. e., infancy and coverture. The Act of 1879 removed the disability of coverture, but not that of infancy.” See, also, Coven v. Coven, 6 D. & C. 794.

For the reasons stated, the divorce is refused.

Prom George Ross Eshleman, Lancaster, Pa.


author: MacDade, J.—

text:
    Stevens v. Meade.

      W. S. Sykes, for plaintiff; E. D. McLaughlin, for defendant.
   MacDade, J.—

. . . The jury found for the plaintiff for the full amount of his claim, and, thereafter, the defendant filed a motion for a new trial and assigned as reasons therefor the following:

“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 learned trial judge erred in overruling defendant’s motion that a verdict be directed for the reason that plaintiff, Albert Stevens Hardwood Flooring Company, is a fictitious trade name and not registered under the Act of 1917 and its supplements. 5. The learned trial judge erred in overruling defendant’s objection that the allegata and probata were not the same, in that plaintiff in his statement of claim did not set forth in full his written contract between the plaintiff and defendant.” . . .

A verdict either way probably would have been justified. The only matter which disturbed us at all is the fourth assignment of error, wherein the question is raised that the plaintiff, Albert Stevens, trading as Albert Stevens Hardwood Flooring Company, is a fictitious trade name and that he is not registered under the Act of June 28, 1917, P. L. 645, and its supplements, and, therefore, cannot recover in this action.

The defendant cites the case of Snaman v. Maginn, 77 Pa. Superior Ct. 287, as authority for our holding that the plaintiff, Albert Stevens, trading as Albert Stevens Hardwood Flooring Company, is a fictitious trade name, and that he, therefore, should be registered under the Act of 1917, citing that the name of Snaman which appeared in the name of Snaman Realty Company was to be considered as a fictitious trade name, and the plaintiff should not be permitted to recover. In that case the court decided, it is claimed,' that it was against public policy for persons trading under such name not to have it registered, so that the public at large might know who the owner of the business was.

With this we are agreed, and the public at large should be protected and it would greatly expedite business transactions and lessen rascality if the act would be complied with, but we are unable to see how the plaintiff in the instant case is trading under a fictitious trade name and should be required to register under the above act and its supplements when the world has notice that it is a single individual trading as the Hardwood Flooring Company and that there is nothing fictitious about the individual’s name.

As was said in McLaughlin v. Baker, 5 D. & C. 781, 39 Lanc. Law Rev. 207, partnerships using surnames of their members to make up a firm name are not using fictitious names within the meaning of the Fictitious Names Act of June 28, 1917, P. L. 645, as amended by the Act of May 10, 1921. In Scattergood, Birdsell & Satterthwaite v. Pipe Co., 7 D. & C. 362, 39 Lanc. Law Rev. 385; 39 York Leg. Record, 14, partnerships using true names or surnames of their members as their firm style are not using fictitious names within Acts of June 28, 1917, P. L. 645, May 10, 1921, P. L. 465, and June 29, 1923, P. L. 979, although it does not appear that all partners are named: Brittingham v. Blatt, 16 Del. Co. Reps. 198; 70 Pitts. L. J. 1080.

By reference to Brittingham v. Blatt, supra, the reasoning therein applies aptly to the circumstances in the instant case. As in that case, so it is in this. It appeared from the statement of plaintiff’s claim, as well as from the affidavit of defense, that N. Brittingham was the sole owner of the business of the plaintiff. The affidavit of defense invoked the provisions of the Act of June 28, 1917, P. L. 645. That act does not apply to a case where the plaintiff is the sole owner of the business: Walker v. Mason, 272 Pa. 315.

Its requirement is that the certificate therein referred to must set forth the name or names and addresses of all the persons owning or interested in said business. The mischief sought to be remedied by the statute applies only to cases where other persons than the plaintiffs named are owners or interested in the business.

As to the fifth exception, we note that defendant claims that the allegata and probata in the instant case were not the same, in that the plaintiff in his statement of claim did not set forth his written contract with the defendant.

We could not sustain this objection, for it was the duty of the defendant, if he thought that the statement of claim was not in accordance with the Practice Act of May 14, 1915, P. L. 483, and its supplements, to move for a more specific statement. And this he has failed to do. He chose to go to trial, and must, therefore, abide the result. In any event, at the trial, if the plaintiff so desired to amend, we would have permitted the statement of claim to be amended and would not continue the case because of any alleged surprise attack upon the defendant or his rights, for the defendant was fully prepared when the case was called to trial to meet the issue. If it can possibly be construed that the allegata and probata are not the same, the statement of claim can be amended now to conform with the evidence and the verdict, as could have been done at the time of the trial, so that justice might be promoted. The jury has rendered its verdict and it must be sustained, and we cannot, in the interest of the speedy administration of justice, permit technicalities in pleadings to overcome our sense of right and justice.

Under our appellate court’s -decision, we have full authority to amend the statement of claim at this time so that the pleadings may conform with the testimony and the verdict, and the plaintiff has leave to amend the same, if he deems it necessary to do so, so that the pleadings may conform with the defendant’s idea of what the allegata should be as compared with the probata.

Holding to the above views, we make the following order: And now, Dec. 20, 1928, the above matter coming on to be heard by the court in banc upon the defendant’s motion for a new trial, after due consideration thereof and of the arguments of respective counsel, we do order and decree that the motion for a new trial in the above cause be and is hereby dismissed and the prothonotary is directed to enter judgment upon the verdict in favor of the plaintiff sec. reg.

From William R. Toal, Media, Pa.


author: Williams, P. J.

text:
    Hagan v. Hagan.

      High, Dettra & Swartz, for libellant.
   Williams, P. J.

— No exception having been filed to the report of the master, the sole question for consideration is: Has this court jurisdiction to grant the decree prayed in the libel?

The salient facts touching the residence of the libellant and respondent are briefly these:

On the twenty-ninth day of August, 1925, while the libellant and respondent were domiciled at No. 713 Haverford Road, in the village of Bryn Mawr, Lower Merion Township, this county, the respondent quit the common home and removed to Roslyn, Long Island, New York, where, so far as the testimony reveals, she resides now. On or about the twenty-ninth day of the next November, the libellant took up his residence on Tunbridge Road, in the village of Haverford, Delaware County, this State, where he was residing when he filed his libel representing himself to be a resident of this county. At the date of the hearing before the master, the libellant was still residing in Delaware County.

In the important matter of the dissolution of the marital bonds existing between two members of society, the public has such an interest that the court before which their divorce suit is pending is bound at any and every stage of the action to take cognizance of want of jurisdiction. The question of jurisdiction is of great interest, also, to the parties and their progeny, if any. For these and other reasons, the able report of the master and the excellent briefs filed on behalf of the libellant have received careful consideration.

Since there is no common law of divorce in Pennsylvania, recourse must be had to statute for power to grant divorces: Starr v. Starr, 78 Pa. Superior Ct. 579, 584 (1922). The Act of March 13, 1815, P. L. 150, Section Two (2), P. L. 151, says that “if any person hath been or shall be injured as aforesaid, the husband, in his own proper person, or the wife, by her next friend, may exhibit his or her petition or libel to the judges of the Court of Common Pleas of the proper county where the injured party resides. . . .” Hence, the specific inquiry here presented for solution is whether Montgomery or Delaware was the “proper county” for the libellant to exhibit his petition. Clearly, Delaware was the proper county, for, indisputably, it was the county wherein the libellant was resident at the time he presented his petition to the judges of this court.

The above in part quoted section of the Act of March 13, 1815, supra, is mandatory and not directory: Chiumento v. Chiumento, 34 Pa. C. C. Reps. 320 (1908), Hall, P. J. (Clinton County). The libellant must present his petition to the judges of the Court of Common Pleas of the county in which he resides. The court of any other county is without jurisdiction: Sherwood’s Appeal, 17 W. N. C. 338 (1886), 4 Atl. Repr. 455. In Heath v. Heath, 44 Pa. Superior Ct. 118 (1910), Judge Porter wrote, page 122: “Section Two of the Act of March 13, 1815, requires that the libel be exhibited ‘to the judges of the Court of Common Pleas of the proper county where the injured party resides.’ There can be no question as to the time when this jurisdictional fact of residence is to be determined; the party must reside within the county at the time the libel is presented, when he or she seeks to obtain a divorce from a respondent who has no residence within this Commonwealth.”

The Act of May 9, 1913, P. L. 191, does not abrogate the requirement of Section Two, supra, that a libel in divorce shall be exhibited in the county where the injured party resides: Mauser v. Mauser, 59 Pa. Superior Ct. 275 (1915), Rice, P. J., pages 281-3. Although the Act of June 1, 1915, P. L. 674-6, amended Section Two of the Act of 1815, supra, the amendatory statute retained the original provision that the libel must be exhibited “to the judges of the Court of Common Pleas of the proper county where the injured party resides. . . .” Likewise, the Act of May 8, 1919, P. L. 164-7, amending Section Two, supra, required the presentation of the libel in “the proper county where the injured party resides. . . .” Thus, it is seen that during a period of oveiya century the legislature has inserted in the general system of laws relating to divorce the familiar rule that the proper forum of exhibition of libel is the county in which the injured party resides.

With great insistence, however, the libellant contends his case falls within the purview of the Act of April 26, 1905, P. L. 309-10, the first section of which provides that “where a husband and wife shall be resident in different counties of this Commonwealth, and while they are so severally resident a cause of divorce shall arise, the injured husband or wife may, at his or her option, institute and prosecute proceedings in divorce either in the county of his or her own residence or in the county wherein the offending husband or wife shall be resident and the cause of divorce shall have arisen: Provided, that whenever an action in divorce shall be instituted under the provisions of this act, in a county wherein the respondent is resident, the same being a different county from that in which the libellant resides, personal service of the subpoena in divorce shall be had upon the respondent, if he or she can be found within said county; otherwise, service by advertisement in that county shall be had, in the manner now provided by law.”

Unfortunately for the libellant, his resort to the Act of April 26, 1905, supra, is confronted with two difficulties; first, the cause of divorce did not arise while he and his wife were “severally resident” “in different counties;” and, second, the respondent was not “resident” in Montgomery County when her husband exhibited his petition in this forum.

The libellant urges the cause of divorce upon which his libel is based did not arise until the twenty-ninth day of August, 1927; that is, exactly two years after the respondent had left the common home in Bryn Mawr and when the libellant not only was but for more than a year had been a resident of Haverford. In effect, the husband says: “When the cause of divorce arose, I was actually residing at my new home in Delaware County and my wife was constructively residing at my old home in Montgomery County.” With such contention there cannot be judicial agreement, for, in law, the cause of divorce arose on this twenty-ninth day of August, 1925, when wilfully and maliciously and without reasonable cause the respondent withdrew from the family habitation, such act of withdrawing giving rise at once both to a cause of divorce and to an inchoate cause of action in divorce.

If a cause of divorce on the ground of desertion persist six (6) months, Pennsylvania statutes allow the start of an action. If the cause of divorce persist eighteen (18) months longer, our acts of assembly permit the absolute dissolution of the marriage bond. The cause of action — inchoate at the outset — matures if the' cause of divorce persist two (2) years in all. The distinction drawn between a cause of divorce and the thereon cause of action is recognized by the Act of April 26, 1850, P. L. 590-1, which declares that application for divorce may be made by petition or libel to the proper court, “at any time not less than six (6) months after such cause of divorce shall have taken place” — language recognizing in the plainest possible way that the cause of divorce occurs when the respondent wilfully and maliciously and without reasonable cause deserts the habitation of the libellant. The language recognizes, also, the existence of an inchoate cause of action at least six (6) months after the beginning of the separation. When the cause of divorce arose in the present case, all the testimony points to a joint residence of the libellant and respondent in Montgomery County.

The second obstacle in the path of the effort of the libellant to draw his suit within the scope of the Act of April 26, 1905, supra, is as insuperable as the first. The statute reads that the injured party may institute proceedings in the county wherein “the offending . . . wife shall be resident,” . . . and, further, “in a county wherein the respondent is resident.”

Undoubtedly, the legislature contemplated a situation in which the respondent should be actually living and resident in a different county from the libellant when he instituted proceedings, such different county being, of course, the county in which the cause of divorce had arisen. When the libellant began his suit in Montgomery County, for nearly two (2) years the respondent had been living in the State of New York. If, on the twelfth day of September, 1927, the date of the filing of the libel, the respondent had a constructive legal residence in this Commonwealth — a point not decided — surely such residence was not at the Montgomery County home long since abandoned by her but at the new domicile of her husband in Delaware County. Consistently, the word “residence” as used in a divorce statute has been taken to mean actual bona fide residence with domiciliary intent. On September 12, 1927, the respondent had been physically out of this State and the libellant had been legally absent from this county for upwards of two (2) years. How, then, can it be argued cogently that when the libel was filed the respondent still possessed an actual bona fide residence in this county where she expected honestly to keep on living?

The mere fact that, since the hearing before the master and the submission of his report, there has been placed in his hands an affidavit purporting to be that of the respondent, a procedure for which, incidentally, no provision is made by statute or rule of court, does not cure the jurisdictional defect heretofore discussed. As stated hitherto, jurisdiction in divorce is statutory in origin and mandatory in nature. Conceding for argument — although not deciding — that the jurisdictional defect at bar be curable, the respondent should have proceeded timely and in accord with law.

And now, this thirteenth day of November, 1928, upon consideration of the foregoing case, it is ordered, adjudged and decreed as follows:

The recommendation of the master is adopted and his report is confirmed absolutely, the prayer of the libel is denied, the libellant is refused a divorce and for want of jurisdiction, the libel is dismissed, at the cost of the libellant.

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


author: Coughlin, J.,

text:
    Giordonne v. Alaimo Brothers.

      Frank L. Pinola, for claimant; C. H. Snyder, for defendants.
    April 8, 1929.
   Coughlin, J.,

— An appeal was taken from the decision of the referee, alleging an error of law, in that paragraph (a), section 306, article ill, Workmen’s Compensation Act of June 2', 1915, P. L. 736, as amended by the Act of April 13, 1927, P. L. 186, is unconstitutional, and that the forty-eight hours’ notice limitation is also unreasonable.

The board dismissed the appeal, refusing to pass upon the constitutionality of an act of assembly.

The referee found: (a) On Feb. 20, 1928, claimant was in the employ of Alaimo Brothers as a laborer, at an average weekly wage of $21.60; (b) the defendants are general building contractors; (a) Feb. 20, 1928, 4.30 P. M., daimant was injured by an accident in the course of his employment, in manner as follows: He was down on one knee lifting a ninety-eight pound sack of cement and in so doing strained himself in the right inguinal region, producing a hernia. The descent of the hernia followed very shortly after the strain, causing some pain, but did not become disabling until Feb. 27th; (d) claimant did not consult a physician or report the accident to employer, or to a representative of employer, until Feb. 26, 1928; (e) Feb. 28, 1928, claimant was operated upon and cured; (f) surgical and medical services, medicines and supplies for first thirty days after disability were $100, and cost of hospital treatment, services and supplies for first thirty days was $93. No part of either has been paid; (g) claimant was totally disabled by the hernia from Feb. 25, 1928, to May 1, 1928; (h) defendants moved that petition be dismissed, for the reason that the employer was not notified of the accident within forty-eight hours.

1. Referee concluded as a matter of law that article ill of the Act of 1915 applied.

2. That because of failure to notify within forty-eight hours, claimant is barred by the statute of limitations in accordance with article in, section 306, paragraph (g), of the Workmen’s Compensation Act of 1915, as amended by the Act of 1927.

The findings of the referee and the board were to the effect that the hernia in question was not compensable, since the conditions set forth in said paragraph (g) of the Amendment of 1927 were not shown to have existed. Appellant’s counsel’s objections or exceptions on the ground of the unconstitutionality of the statute were not pressed; they were, in fact, withdrawn.

The Compensation Act deals with the contractual and statutory liability of an employer to pay damages for injuries received by an employee in the course of employment. The liability arises out of the contract of hiring; it becomes enforceable upon the happening of the accident, and its extent is defined by the statute.

The Workmen’s Compensation Act provided for compensation for injury resulting from an accident, but not for ordinary sickness or death resulting from natural diseases during the course of employment. On the other hand, where complainant brings himself within the provisions of the statute by showing disease is a result of accident, and disability follows from the disease, compensation will be awarded: Wolford v. Geisel M. & S. Co., 262 Pa. 454.

The burden is always on claimant to prove the disability was due to an accident and not from natural causes: McGurrin v. Hudson Coal Co., 264 Pa. 230. Where evidence disclosed disability resulting from a hernia sustained by claimant as a result of strain in lifting, the same was held compensable under the Workmen’s Compensation Act: Smith v. Pittsburgh Coal Co., 71 Pa. Superior Ct. 325. In other words, claimant brought himself within the provisions of the statute as it then existed.

Many times in the case of hernia the question has arisen as to whether or not it was a physical sickness or ailment which ordinarily develops gradually or whether it was caused by accident in the course of employment. As stated in Smith v. Pittsburgh Coal Co., 27 Dist. R. 43: “The danger of fraud upon employers in such cases, which is no doubt a real danger, may be a matter for regulation by law.” This the legislature did in the cáse of hernia by adding paragraph (g) to section 306 of the Workmen’s Compensation Act, within the provisions of which claimant must bring himself in order to be entitled to compensation.

Section 306 of the Act of 1915 was amended by the Act of April 13, 1927, P. L. 186, by the addition thereto of clause (g), providing: “Hernia shall be considered as a physical weakness or ailment, which ordinarily develops gradually, and shall not be compensable, unless conclusive proof is offered that the hernia was immediately precipitated by such sudden effort or severe strain that, first, the descent of the hernia immediately followed the cause; second, there was actual pain in the hernial region; third, the above manifestations were of such severity that the same were immediately noticed by the’ claimant and communicated to the employer, or a representative of the employer, within forty-eight hours after the occurrence of the accident.” There might be a difference of opinion as to whether forty-eight hours is a reasonable period, but the reasonableness of the provision is a question for the legislature and not for the court.

Defendants move to dismiss the appeal, for the reason that the appellant did not, at the time of taking the appeal, serve written notice upon the adverse party, setting forth the date of the appeal and the court in which the same was filed.

Under the authority of Stankiewicz v. Heights Construction and Supply Co. and Standard Accident Ins. Co., 95 Pa. Superior Ct. 215, we would feel justified in denying the motion to quash and dismiss the appeal. We have preferred to go over the record on its merits and the law involved and find that the Compensation Board was correct in its legal conclusions. Therefore, the appeal is dismissed.

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


author: Fleming, P. J.,

text:
    Flick v. Decker Chevrolet Company.

      E. J. Thompson, for plaintiff.

      J. K. Johnston (with him Philip H. Johnston), for defendant.
    July 24, 1929.
   Fleming, P. J.,

— This is an action in replevin whereby the plaintiff seeks to recover from the defendant a Pontiac sedan. At the trial of the cause a non-suit was entered and the matter is now before the court on plaintiff’s motion to take off such non-suit.

The contention of the plaintiff, concisely stated, is that defendant warranted a certain Hudson brougham and that by reason of a breach of such warranty he is entitled to return the same and maintain a replevin for the recovery of the Pontiac sedan which had been given in part-payment for the Hudson. His contentions are based upon his interpretation of the Sales Act of May 19, 1915, and upon the decision of the Superior Court in Yonker v. Vaneer, 91 Pa. Superior Ct. 157. These remedies, however, do not inure, if controlling, to the plaintiff in a cumulative sense, for they are directly opposed to one another. In the case of Yonker v. Vaneer, 91 Pa. Superior Ct. 157, cited by the plaintiff, it has been held that a contract induced by fraud is voidable, and in the case of the sale and delivery of goods induced by fraud of the vendor, the vendee may rescind and sue in replevin in disaffirmance of the contract. Under the provisions of the Sales Act, the breach of warranty is the controlling feature and not fraud. Fraud is distinguishable from breach of warranty in that in fraud there is a guilty knowledge of the falsity of the representation on the part of the party making it, while in a breach of warranty there is not this guilty knowledge. The term fraud implies deceit or artifice.

There is no indication or averment, either in the pleadings or in the testimony adduced by the plaintiff at the trial, showing any trace of fraud, either express or implied, on the part of the defendant herein. In fact, we have heard no such contention from the lips of plaintiff’s counsel. That fraud did not exist and has not been shown to exist is beyond question. The rule laid down in Yonker v. Vaneer, supra, therefore, cannot apply in the instant case.

There remains, therefore, for determination the following questions: Was there a warranty by the defendant to the plaintiff at the sale of the Hudson car? If so, what were the terms of the warranty? Was there a breach of such warranty, if one existed? Did plaintiff fully perform the duties and fulfill the obligations imposed upon him by law? Does the testimony of plaintiff at the tx-ial establish a case sufficient to put defendant to a defense?

It has been held in Holmes v. Tyson, 147 Pa. 305, that the question as to whether or not a warranty exists, though the same be alleged to have been made by parol, is for the court as a matter of law where there is no conflict of evidence and the language alleged to have been used is not equivocal.

Plaintiff states, on page 2 of the notes of testimony, that he knew that the Hudson was not a new car. He says that defendant “said he would guarantee the car for ninety days.” On page 11 of the notes of testimony, the plaintiff testified, on cross-examination, as follows: “Q. I understand you to say it would cover everything (referring to the alleged guarantee); as a matter of fact, when a guarantee is given, does it not simply refer to material and workmanship on the car? A. It does.” Further, on page 17 of the notes of testimony, the plaintiff, after hesitating and refusing to answer until directed by his counsel to do so, testified, on cross-examination, as follows: “Q. I want you to answer the question; were not those defects (refex’ring to the deficiencies in the Hudson car complained of by plaintiff) all caused by the usage of the car, rather than on account of the material or workmanship in the car? (Witness hesitates.) Q. What is your answer? A. Well, it might be. I don’t know.” Again, on page 20 of the notes of testimony, plaintiff testified further on cross-examination: “Q. Would lack of care, or would improper care, cause all the difficulty you had with the Hudson ear? A. Well, that might have a little something to do with it, but not all to do with it.” Assuming, therefore, for the purposes of our consideration, that the alleged guarantee was made, we have it from plaintiff’s own lips that such guarantee covered only materials and workmanship; that it was not defective material or poor workmanship which caused the trouble he complained of; and, further, that such trouble as he had experienced was due to his, the plaintiff’s, usage of the car. We have also the plaintiff’s, frank admission that in the period beginning Oct. 7, 1927, and ending sometime prior to Christmas in December, 1927, he had driven the Hudson car 5600 miles, and had, during that time, collided with a deer with sufficient force to tear away the running board of the car, in which condition it remained when delivered to defendant’s garage.

Plaintiff’s witness, Joe Flick, who is plaintiff’s brother and also a mechanic in the employment of the defendant, testified that the faulty timing complained of by the plaintiff was easily remedied and had been so remedied by shortening the chain, after which the fault no longer-existed. He added that some of the valves appeared to be burned, explaining that such burning likely came from fast driving. On direct examination, he admitted that, notwithstanding the fact that he had worked on the car, he was unable to say that there was any trouble with the transmission nor that it leaked or was cracked in any way. He admitted that when the car was returned by the plaintiff that the front fender was bent and that the bumper was broken. Taken all in all, the testimony of the plaintiff and his witnesses shows concisely that the car was given unreasonably hard usage and that it was far from being in the condition in which it was received by the plaintiff when it was returned to the garage of the defendant.- If a warranty was given as to material and workmanship, the testimony of the plaintiff and his witnesses fails utterly to show any breach thereof, and there is no question of fact to be submitted to a jury.

Plaintiff cites section 69, paragraph 1, clause (d), of the Act of May 19, 1915, P. L. 543, cited as the Sales Act, to sustain his right to a replevin in this case. Such clause provides as follows: “Where there is a breach of warranty by the seller, the buyer may, at his election ... (d) Rescind the contract to sell or the sale and refuse to receive the goods, or if the goods have already been received, return them or offer to return them to the seller and recover the price or any part thereof which has been paid.”

This does not provide that the buyer shall recover in exact kind that which he has paid or given for the article purchased. The car sought to be replevied' was the equivalent of $600 in money, and money is the price which the act contemplates. “The authorities agree that upon a breach of warranty two remedies are open to the buyer: First, he may return the chattel, if delivered, within a reasonable time after discovering such breach and recover back in assumpsit on the common counts the amount paid; or, secondly, he may retain the chattel and sue upon the contract for damages resulting from the breach of the warranty:” International Motor Co. v. Oldfield, 134 Md. 207, 106 Atl. Repr. 611.

In the case of the sale of an automobile, two courses are open to the buyer when he discovers defects in the car and decides to rely on an express warranty. He may return the car and plead rescission of the contract as a defense to an action for its price and counter-claim for the amount already paid, or he may keep the car and counter-claim for damages. But these defenses are inconsistent with each other and cannot both be sustained in the same action: Miller v. Zander, 147 N. Y. Supp. 479.

The plaintiff has not placed or offered to place the defendant in statu quo, nor has any fraud been shown by plaintiff. The testimony of the plaintiff shows beyond doubt that, even though the defendant made an affirmation of fact or gave any promise relating to the Hudson car, such affirmation or promise did not extend beyond material and workmanship. The plaintiff has unequivocally admitted such in his testimony. Nor has it been shown that any defects in material or workmanship existed other than such as arose from the exceedingly hard usage to which the car was put; as evidenced by the great mileage admitted, the collisions encountered and the condition of the car upon its return.

The time has not yet arrived when it should be made possible for a man to produce a well-worn car, with a running-board and fender missing, and receive therefor an ample allowance in the purchase of another car, only to take out the car purchased and subject it to evident hard usage until its efficiency is impaired or injured and then be permitted to return it in its impaired condition and by such act relieve himself of his promises to pay and receive as an additional reward for his default the original car traded in or its liberal value which had been allowed in the trade.

We are of the opinion that there were no questions of fact to be submitted to the jury and that plaintiff has failed to establish his right to replevin herein.

And now, July 24, 1929, the motion of the plaintiff to take off the non-suit entered is dismissed.

From S. D. Gettig, Bellefonte, Pa.


author: Valentine, J.,

text:
    Ochall v. Dvorak.

      Leo W. White, for plaintiff; William A. O’Connor, for defendant.
    March 11, 1929.
   Valentine, J.,

— This action of trespass to recover damages sustained by the collision of defendant’s and plaintiff’s motor-vehicles on July 18, 1926, was instituted before a justice of the peace Feb. 18, 1927, and, on appeal, referred to Hon. H. A. Fuller, who, by original report found for the plaintiff, later sustained defendant’s exceptions and directed judgment in his favor, and finally sustained plaintiff’s exceptions to the supplemental report and directed judgment in favor of the plaintiff for $104.10.

The defendant’s contention is that the alderman was without jurisdiction, in that the claim of the plaintiff exceeded the sum of $100, the original claim being $154.10.

Both plaintiff and defendant are residents of this county, in which place the collision occurred. The exceptions raise the sole question of law, whether jurisdiction is lacking by reason of the fact that the plaintiff’s claim before the justice of the peace exceeded the sum of $100. The answer to this question depends upon the construction of section 30 of the Act of June 14, 1923, P. L. 718, 749, providing: “All civil actions for damages arising from the use and operation of any motor-vehicle may, at the discretion of the plaintiff, be brought before any alderman, magistrate or justice of the peace in the county where the alleged damages were sustained, if the plaintiff has had said damages repaired, and shall produce a receipted bill for the same, properly sworn to by the party making such repairs or his agent, or said action may be brought in the Court of Common Pleas of said county, and service of process, in either case, may be made by the sheriff of the county where the suit is brought, deputizing the sheriff of the county wherein the defendant or his registered agent resides or where service may be had upon him under the existing laws of this Commonwealth, in like manner as process may now be served in the proper county: Provided, that no action involving more than one hundred dollars shall be brought before any alderman, magistrate or justice of the peace.”

Section 1 of the Act of July 7, 1879, P. L. 194, confers upon aldermen, magistrates and justices of the peace “concurrent jurisdiction with the Courts of Common Pleas of all actions arising from contract, either express or implied, and of all actions of trespass and of trover and conversion wherein the sum demanded does not exceed $300.”

Under this provision and prior to the Act of May 25, 1887, P. L. 271, the proper remedy for the damages claimed in this case would have been trespass vi et armis, and after the passage of the Act of 1887 would have been trespass. Trespass is proper where the injury is by the direct act of the party, whether done wilfully or negligently: Strohl v. Levan, 39 Pa. 177. The claim in the present case is of a character of which a justice of the peace has jurisdiction under the Act of 1879 (Sprout v. Kirk, 80 Pa. Superior Ct. 514), although a claim for consequential damages resulting from negligent driving by defendant’s employees is not of such character: Wildasin v. Martin-Parry Co., 2 D. & C. 173. However, section 30 of the Act of June 14, 1923, supra, enlarges the jurisdiction of justices of the peace so as to include actions for indirect or consequential damages in cases falling within its provisions: Campbell v. Krautheim, 4 D. & C. 577.

Can section 30 be regarded as repealing the provisions in the Act of 1879, supra, that aldermen and justices of the peace shall have . . . jurisdiction of all actions of trespass . . . wherein the sum demanded does not exceed $300 ? Repeals by implication are not favored. To warrant such construction there must be a manifest and total repugnance between the provisions of the old law and the new, sufficient to lead to the conclusion that the new was intended to abrogate the old. The more natural if not necessary inference in all such cases is that the legislature intended the new law to be auxiliary to, and in aid of, the purposes of the old: Com. v. Vetterlein, 21 Pa. Superior Ct. 587.

Granting that the legislative intent as to the interpretation of section 30 is not clearly expressed, yet, by judicial construction, the conclusion has been reached, and on principle seems sound, that this section applies only in cases in which the defendant is a non-resident of the county wherein the alleged damages were sustained. The provision relative to suits before justices of the peace was not necessary in order to give such officers jurisdiction of an action such as is involved in the present case. Independently of section 30, a justice of the peace would (under the Act of 1879) have jurisdiction of such a cause of action wherein the claim did not exceed $300.

In Sharp v. Boyer, 6 D. & C. 597, Judge Stotz reached the conclusion that section 30 of the Act of 1923, supra, did not repeal the provision contained in the Act of July 7, 1879, supra, that aldermen, magistrates and justices of the peace shall have concurrent jurisdiction with the Court of Common Pleas of all actions of trespass not exceeding $300. In Petros v. Crawl, 74 Pitts. L. J. 55, Judge Jones reached the same conclusion, as did Judge Rowland in Smith v. Algeo, 74 Pitts. L. J. 224; and in Wenger v. Dull, 10 D. & C. 163, Judge Hassler decided that the $100 limitation in section 30 of the Act of 1923, supra, applied only to suits against non-resident defendants, and that a justice of the peace had jurisdiction in a suit to recover $150 damages for injury to the plaintiff’s automobile by collision.

Again, in the recent case of Wasilewski v. Search, 25 Luzerne Legal Reg. 71, Judge Fine held that the section in question had no application where defendant sued for damages resided in the county where suit was brought, and that in such case the jurisdiction of the alderman or justice of the peace was not limited to $100.

These authorities seem decisive of the present case and cause us to conclude that Judge Fuller’s final ruling was correct.

The exceptions of the defendant to the report of the referee are overruled, and the prothonotary is directed to enter judgment in favor of the plaintiff and against the defendant for $104.10, with interest from Feb. 18, 1927.

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


author: Shanaman, J.,

text:
    Berger v. Nagle et al.

      E. H. Deysher and E. D. Trexler, for rule.

      Wm. Abbott Witman, Jr., contra.
    March 16, 1929.
   Shanaman, J.,

— Charles W. Berger and Verta M. Berger, his wife, suffered personal and property damage in an automobile collision. Each brought a separate suit for damages against Frank T. Nagle and Wilson Sarig, naming them as joint defendants, and charging them with joint negligence that caused the collision. Frank T. Nagle, one of the defendants, died before the trial, and Nellie B. Nagle, his administratrix, was substituted as a party defendant. Both suits were tried together. At the trial, plaintiffs opened their case by calling defendant Sarig as under cross-examination, and proceeded to question him as to the circumstances of the accident. Counsel for defendant Nagle objected to the competency of the witness to testify against the interest of the deceased defendant Nagle, and, being overruled, was granted an exception. Counsel for plaintiffs next called both plaintiffs in succession, and questioned them at length about the accident, to all of which counsel for defendant Nagle objected. Counsel for plaintiffs contended that plaintiffs were competent because, as between plaintiffs and the decedent, there was a surviving witness to the accident, Sarig, who had been called and had testified adversely to plaintiffs. The court overruled the objections and granted exceptions to defendant Nagle. Upon a motion for a non-suit, counsel for plaintiffs still pressed that the testimony of plaintiffs’ witnesses was competent against both defendants, and the court submitted the case to the jury, who found a verdict for both plaintiffs against both defendants.

The Act of June 11, 1891, P. L. 287, provides, inter alia, as follows: . . nevertheless, any surviving or remaining party to such thing or contract, or any other person whose interest is adverse to the said right of such deceased or lunatic party, shall be a competent witness to any relevant matter, although it may have occurred before the death of said party or the adjudication of his lunacy, if, and only if, such relevant matter occurred between himself and another person who may be living at the time of the trial and may be competent to testify, and who does so testify upon the trial, against such surviving or remaining party or against the person whose interest may be thus adverse, or if such relevant matter occurred in the presence or hearing of such other living or competent person.”

While plaintiffs’ rather ingenious course brought them within the above language, we think the ease of Cake v. Cake, 162 Pa. 584, supports defendant’s objections. In that ease, plaintiff, an executor, was called by defendant as on cross-examination, and while upon the stand, upon interrogation of his counsel, explained matters about which he had been cross-examined. Defendant contended that, under the Act of 1891, this opened the door for the testimony of the defendant. The court said, at page 585: “Certainly, the living witness whose testimony is to make competent the surviving or remaining party to the record must be called in the interest of and by the party representing the right of the deceased. The calling of such witness by the adversary could not have Keen in contemplation of the legislature. It was not the intention of that act to provide so sure and easy a method of removing the bar of incompetency.”

In Robbins v. Farwell, 193 Pa. 37, the court said, at page 43: “Here, J. E. Moore was called by Farwell, who testified to a conversation between Noyes and Farwell establishing the parol contract; but this did not render Farwell competent, because Moore was not adverse, but a witness called by himself.” Patterson v. Hughes, 236 Pa. 315, 318, is in accord.

Moreover, Sarig himself was not competent when called by plaintiffs as against Nagle. The verdict might have acquitted or convicted both defendants, in either of which cases Sarig and Nagle were not adverse to each other; but the verdict might also acquit Sarig and convict Nagle of negligence. See Act of June 29, 1923, P. L. 981. Sarig’s interest, therefore, as co-defendant with Nagle, was opposed to that of Nagle. If his testimony produced a judgment in favor of the plaintiffs and against Nagle alone, he (Sarig) was the gainer thereby. Therefore, he was not only a “surviving or remaining party to such thing” (Act of May 23, 1887, § 5, cl. (e), P. L. 158), the “thing” in this case being the collision (Irwin v. Nolde, 164 Pa. 205; Lockard v. Vare, 230 Pa. 591), but he was also a “person whose interest shall be adverse to the said right of such deceased . . . party:” Section 5, cl. (e), supra. If merely a surviving party to the transaction, Sarig could testify to it (Hanna’s Estate, 81 Pa. Superior Ct. 159, 162), but, having an interest adverse to that of decedent, he was incompetent. Neither of the defendants is entitled to judgment n. o. v., for the reason that the testimony, properly admitted, would support a verdict against them. The cause must be retried. The presence or absence of negligence on the part of each and all of the three drivers was involved in the testimony, and we feel that a just determination of the case will be best attained by retrying the entire issue between the parties.

And now, to wit, March 16, 1929, defendants’ rules for judgment n. o. v. are dismissed and their rules for a new trial are made absolute.

From Charles K. Derr, Heading’, Pa.


author: Koch, Dep. Att’y-Gen.,

text:
    State Highway Bridges.
    Nov. 7, 1929.
   Koch, Dep. Att’y-Gen.,

— Under the provisions of the Act of May 1, 1929, P. L. 1054, the Department of Highways will, on June 1, 1930, take over all county bridges over streams on State highway routes in boroughs, towns and townships, and thereafter such bridges must be built, rebuilt, repaired and maintained by the Department of Highways at the expense of the Commonwealth from moneys in the Motor License Fund. Meantime, the Department of Highways is authorized, at its option, to take over any such bridges as it may, in its discretion, decide should be built, rebuilt or repaired.

Accordingly, you have already arranged to take over certain county bridges and to rebuild the same, and in several such instances the counties which erected the bridges to be replaced, and were heretofore responsible for their maintenance, have asked that they be given the old bridges, so that they may either salvage the same or use the structural steel work in the construction of other county bridges not on State highway routes. You desire, therefore, to be advised whether the old bridges to be replaced and rebuilt by the Commonwealth under the provisions of the Act of 1929 become the property of the Commonwealth when they have been dismantled, or remain the property of the respective counties which originally erected them.

After the passage of the Sproul Highway Act of May 81, 1911, P. L. 468, your Department was advised by First Deputy Attorney-General Keller (Opinions of the Attorney-General, 1915-1916, page 241) that under the provisions of the Sproul Act, the Department of Highways must build all bridges along State highway routes which it was formerly the duty of the township authorities to build or maintain. This ruling has been upheld by the Supreme Court in the case of Com. ex rel. v. Lehigh Coal and Navigation Co., 285 Pa. 551.

We are advised by your Department that never has a township laid claim to an old bridge structure along a State highway route when the same has been supplanted by a new bridge constructed by the Department of Highways and paid for out of the Commonwealth’s funds. It is largely because of this fact, we assume, that paragraph 51 of your present contract specifications provides ■in part as follows: “On State highways, except county bridges, drainage pipes and guard rails, or as otherwise provided in the Special Requirements, the structure shall become the property of the contractor.”

It is obvious that the exception of county bridges in the foregoing quotation was based on the fact that the Department of Highways had no jurisdiction whatever over county bridges prior to that imposed by the Act of 1929: Com. ex rel. v. Grove, 261 Pa. 504.

The Act of June 3, 1895, P. L. 130, authorized the Commonwealth to rebuild county bridges over navigable rivers and other streams where such bridges have been destroyed by flood, fire or other casualty. This act provided that all bridges erected pursuant to its provisions shall be maintained and kept in repair by the county in which the same may be located at its own expense, except in cases where such a bridge spans a stream forming the boundary line between two counties, in which event the expense of maintenance thereof must be borne jointly by the two counties concerned.

In 1904, several bridges erected under the authority of the Act of 1895 were destroyed by floods, and the question arose whether the structural steel or iron reclaimable from the wreckage belonged to the Commonwealth or to the counties wherein said bridges had been erected. In an opinion rendered April 21, 1904 (13 Dist. R. 672), Attorney-General Carson held that the structural iron or steel, once paid for by the State, had been donated to the county by the provisions of the Act of 1895, and that the Commonwealth accordingly could lay no lawful claim to the parts of the wrecked bridge that could be salvaged.

It will be noted that section 8 of the Act of 1895 does not specifically provide that the bridges erected under the provisions of said act shall, upon their completion, become the property of the counties, but provides that they shall be maintained and kept in repair at the expense of the county. This control, in the opinion of Attorney-General Carson, was tantamount to ownership.

The provisions of section 1 of the Act of 1929 are: “That any county bridges over streams on State highway routes in boroughs, towns and townships may be taken over at any time after the approval of this act, and all such bridges shall be taken over by the Department of Highways the first day of June, one thousand nine hundred and thirty, and, when so taken over, shall thereafter be built, rebuilt, repaired and maintained by the Department of Highways at the expense of the Commonwealth from moneys in the motor license fund.”

It thus appears that the terminology of the Act of 1929 more clearly indicates than did the terminology of the Act of 1895 a transfer of actual ownership of the bridges affected by the respective acts.

You are, therefore, advised that county bridges taken over by virtue of the provisions of the Act of 1929 automatically become the property of the Commonwealth.

From C. P. Addams, Harrisburg, Pa.


text:
    Turner v. Philadelphia Rapid Transit Company.

      Earle Hepburn, for plaintiff; John V. Lovitt, for defendant.
    Dec. 12, 1929.
   Martin, P. J.,

— Plaintiff instituted this suit to recover damages for injuries inflicted upon him when struck by a trolley car while waller ing across 29th Street at the intersection of Thompson Street.

The accident occurred at about 7 o’clock, on a clear morning, Nov. 6, 1925. Plaintiff testified that he was walking west on the north side of Thompson Street; when he arrived at the curb of 29th Street, prepared to cross, he looked to see if there was any traffic and saw a car coming south just about crossing Master Street, in the neighborhood of 375 feet distant; that he started to cross, and when he arrived at the dummy between the two tracks he looked again and saw the car about ninety feet away. He was then about two feet from the south-bound car track and continued to walk seven or eight feet, occupying two or three seconds, and had one foot over the rail nearest the west curb, between the rail and the curb, when he was hit on the right shoulder by the car. He fixed the distance of ninety feet by the flash as the trolley pole crossed an intersecting wire.

There was no evidence as to the speed of the car. Plaintiff testified it knocked him about twenty-five feet. On cross-examination, he testified that the last time he looked was when he was between the car tracks and that he did not look again, but started to walk across, and the next thing he knew he was hit; that he started a little inside the dummy and that it would take about two steps to reach the point where he was struck. He admitted the trolley car might have been a little nearer than ninety feet, his only standard for determining the distance between him and the car being the flash at the trolley pole, and he did not mean to say the front of the trolley car was ninety feet away, but meant that point from where he saw the flash was ninety feet away, so the front of the trolley car would be somewhat nearer to him, but as he did not know the length of the car he could not estimate the distance, and was unable to tell how far away the front of the trolley car was where the pole made the flash by its contact with the wire, and admitted that the front of the ear would be a car length nearer.

The only other witness to the accident was standing at the comer of 29th and Thompson Streets. He testified that he saw the plaintiff coming across the street, but did not observe where the trolley car was at that time, and did not see him from the time he left the curb until he was on the south-bound track, about two feet from the west rail. This witness made a previous statement in which he said that plaintiff was crossing the east rail of the southbound 29th Street track when the south-bound ear was coming south at a fast speed “at this time about five to ten feet north of the place Turner was crossing.”

Affording to the testimony offered by plaintiff the most favorable interpretation, it is apparent the only inference that can be drawn from the undisputed evidence is that the injuries plaintiff suffered resulted from stepping upon the track directly in front of an approaching car, which struck him almost instantly after he took his position upon the track.

The opinion of Mr. Justice Potter, in Cunningham v. Philadelphia Rapid Transit Co., 240 Pa. 194, 196, is applicable to the present case. There were no obstructions of any kind in the way to prevent plaintiff seeing the approaching car. He advanced to a point of danger, which was at the east rail of the south-bound track, stepped across the rail and came into collision with the car. The space between the rails of the track upon which the ear was coming was about five feet, and as his evidence shows that he was struck when leaving the west rail, he had at that time moved four feet into the space between the rails and advanced five feet from a position of safety outside the rail, where he might have stood had he heeded the approach of the car. Two steps measured the distance and the time it took to make them marked the period which elapsed while he passed from a safe place at the side of the track into the danger zone between the rails. “The only reasonable inference which can be drawn from the testimony is that plaintiff did not heed the near approach of the car and stepped upon the track directly in front of it when it was so near that he had no time to save himself from collision by either stepping forward or backward. It was impossible for plaintiff, had he looked, not to see the car, and ‘if he had used his senses and acted upon the information which they certainly would have given him, he would not have gone directly in front of a moving car to be struck by it.’ . . . When a pedestrian, after stepping in front of a car, comes in practically instantaneous contact with it, it matters not what the testimony as to his previous actions may have been. The mischief is done at that time and the collision occurs practically on the instant.”

In Wolf v. Philadelphia Rapid Transit Co., 252 Pa. 448-450, lit was said by Mr. Justice Walling: “Under all the evidence, plaintiff was guilty of contributory negligence. He voluntarily passed in front of the approaching car when so near that he was struck before he could step across the track. He took the chance of getting over ahead of the car and thereby assumed the risk.”

The facts in the present case are simple, and the evidence by which they were presented was involved in no uncertainty. Their legal value is for the court to determine.

And now, to wit, Dec. 12, 1929, the motion for judgment n. o. v. is granted, and it is directed that judgment be entered in favor of defendant against the plaintiff. Rule for new trial discharged.


author: Gest, J.,

text:
    Kerrigan’s Estate.

      Roper & Caldwell, for exceptants.

      John C. Bell, Jr., guardian ad litem, contra.
    Jan. 3, 1930.
   Gest, J.,

— We agree with the Auditing Judge that the rule in Shelley’s Case does not apply in this case, and it is not necessary to elaborate his reasoning or to refer to any additional authorities that support it.

It is desirable, however, to call attention to the provision of the will that the income is to be paid to the testator’s four daughters nominatim during their lives. The will continues: “In case of the death of any one of my said children without lawful issue the share of such deceased child to revert to the survivors and to be held in Trust, etc.” As this follows immediately the provision for the payment of income, the word “share” may refer to income and not to principal, especially as the will subsequently provides that: “After the death of any or all of my said children, then in such case the entire estate to revert to their lawful heirs absolutely,” where the word “entire” seems to refer to corpus as distinguished from income. On the other hand, when the testator gives his daughters the right of testamentary appointment, he uses the word “share,” which in that connection must mean corpus or principal.

We mention this because when any of the life-tenants die, the question will arise whether the trust has terminated in part or not and whether, if the deceased daughter leaves children, such children will be entitled to share in the income or in the principal. These questions, and perhaps others, will come before the court at the audit of a future account, and we will not discuss them before the occasion arises.

The exceptions are dismissed and the adjudication is confirmed absolutely.

Van Dusen, J., did not sit.