author: Kun, J.,

text:
    Johnson v. Cheyney.

      F. W. Stites, for plaintiff; L. M. Schoch, for defendant.
    Nov. 16, 1928.
   Kun, J.,

Plaintiff, a woman fifty-eight years of age, accompanied by her sister, about the same age, on the evening of April 9, 1925, about 9 P. M., having proceeded eastwardly on the north sidewalk of West Chester Pike, Delaware County, just beyond the limits of the City of Philadelphia, came to a point just opposite Brief Road, which ran into the pike from the south at that point but did not cross it. According to the plaintiff’s case, she waited for the traffic to pass in both directions, and seeing defendant’s car about 200 to 300 feet away approaching from the west, proceeded to cross the pike towards Brief Road; that when plaintiff and her sister had proceeded to about the southern edge of the concrete-paved portion of the pike, they were both struck by the defendant’s automobile, which was traveling about forty-five miles an hour, and which proceeded fifty to seventy-five feet beyond the point of collision before it stopped, dragging the plaintiff along.

The defendant’s case was that he was driving in from a golf club with four friends, and he was driving at the rate of twenty-five miles an hour, and, while so doing, the plaintiff and her sister suddenly emerged from behind a passing car going in the opposite direction, that he swerved to avoid hitting the plaintiff and her sister, who thereupon stepped back and on that account were hit.

The jury was plainly told that if the accident occurred in the manner testified to by the plaintiff and her witnesses, she was entitled to recover; if it occurred in the manner the defendant and his witnesses testified to, defendant was entitled to a verdict. The jury found the facts in favor of the plaintiff and gave her a verdict. No doubt, the very persuasive physical fact in the case that the defendant’s car dragged plaintiff fifty to seventy-five feet after the collision played an important part in the deliberations of the jury.

The only point made on the motion for a new trial filed by the defendant worthy of serious consideration is that the court erred in refusing to permit the defendant to testify to a supposed lack of knowledge that the place at which the plaintiff was struck was a public crossing to the extent that it was such a crossing. The fact that the plaintiff stopped to cross the pike at the point opposite Brief Road was brought into the case as part of the plaintiff’s narrative and not in any sense to predicate upon that fact the requirement of a particular or special degree of care on the part of the defendant. The instant case is in no sense like the case of Watson v. Lit Bros., 288 Pa. 175, cited by the defendant, in which, as the Supreme Court said, the trial judge erred in treating the case as an accident at a street intersection, in which is applicable the rule requiring perfect control of the vehicle and the ability to stop it at the shortest possible notice.

The plaintiff had a right to cross the West Chester pike at any point on looking for approaching traffic (Weaver v. Pickering, 279 Pa. 214); that she did so opposite Brief Road was a mere incident in the case. No special right on the part of the plaintiff or special obligation on the part of the defendant was contended for in this case on that ground. In a word, the case was not submitted to the jury as a street intersection case.

The plaintiff was very badly injured and rendered a partial invalid. As to the amount of damages awarded her, it may be said that, far from being excessive, the court would have sustained a much larger verdict had one been rendered. The motion for new trial was properly overruled.

NOTE. — The verdict was for $14,329.50.


source: Caselaw Access Project

author: Martin, P. J.,

license: Public Domain

text:
    Ecker v. Arch St. Theatre. Kupperstein v. Arch St. Theatre.

      M. S. Levy, for plaintiffs; Levinthal, Schofield & Kraus, for defendants.
    July 3, 1928.
   Martin, P. J.,

The plaintiffs, Jennie Kupperstein and Rose Ecker, were spectators of a play produced by defendants in a theatre conducted by them.

An electric fan attached to the ceiling of the theatre fell upon plaintiffs, causing personal injuries, for which these suits are brought to recover compensation. Both cases were tried at the same time and resulted in a verdict in favor of Jennie Kupperstein for $1000; for her husband, William Kupperstein, $200, and for Rose Ecker $800.

Motions were made for judgment non obstante veredicto. It is contended by defendants’ counsel that there was no proof of negligence, and that the falling of the fan and consequent injury to plaintiffs did not establish a ease of res ipsa loquitur.

Plaintiffs purchased tickets of admission entitling them to occupy seats in the theatre.

The fan was under the sole management of defendants, and its fall was an event which in the ordinary course of things does not occur. There was a presumption of negligence on the part of the defendants which the evidence did not rebut.

It was their duty to afford plaintiffs a safe position in the theatre to observe the play: Oil Co. v. Torpedo Co., 190 Pa. 350.

There had been an inspection of the fan several months before the accident, and the question was submitted to the jury to determine whether or not the fall of the fan was due to the negligence of defendants. There was conflicting testimony as to whether plaintiffs were struck by the falling fan, and this question was properly submitted for the determination of the jury, and the verdicts were warranted by the evidence.

Defendants claim that the damages awarded were excessive.

Jennie Kupperstein testified, “Something struck me over the head; I got dizzy and don’t remember anything else, and after I recalled a little while after, my left wrist was cut, my knee was bruised and my stomach was all like cut into me — I don’t mean cut into me — I felt like something cut me and the cut hurted me very bad. After that, I saw it was a part of the fan, because it was lying across my knee.” She said it struck her head, her left wrist, her right knee and stomach. She was taken in a taxicab to the family doctor, and from there home and went to bed, suffering “fearful pain;” that the pains were getting worse when she stayed in bed, and she had to sit up or walk around, or sit down or lie down. She was confined to her room about three weeks, after which time she went downstairs, but could not get around much, as her feet were terribly swollen. The pain lasted about three months. The doctor attended her three or four times a week. She was pregnant at the time. She testified that she performed the housework before the accident, but was unable to do so without assistance after she was injured. She admitted that there were no marks on her body.

The doctor testified that he had attended her for years and knew that she had been pregnant about six months; that he examined her about two weeks before the accident and found her to be in normal condition; that when she came to his office on the night of the accident, she was suffering from shock, bruises on her left wrist and right knee, a discoloration on her abdomen and abrasions. He kept her in his office a couple of hours to quiet her, and sent her home and ordered a complete rest. He treated her mostly for shock and pain in her leg. Her right leg was swollen down to the ankle. She complained of pain in the abdomen and severe headaches. The wrist cleared up in a couple of weeks, but the right knee did not clear up for a long period. She was under his care for'three weeks every day, and after that period, two or three times a week. His hill was $84.

Rose Ecker testified that the fan came down and struck her on the head, bruising her face and ear, and left side and shoulder and her knee and the inside of her mouth were injured. She did not see it fall, but she saw it lying near her after she was hurt. She went to the doctor’s office in a taxicab, stayed in his office about three hours, went to her sister’s home and went to bed. She was confined to bed four weeks, and under the doctor’s care for seven weeks. She was employed fitting dresses and earned $25 a week, but did no work during the seven weeks. She was hurt on the top of her head, on the left side of her face, the left shoulder, in the inside of her mouth and on her chest and knee. Her face was cut and she had pain in her ear. Her shoulder was cut, her chest was swollen, but there were no black and blue marks. Her knees were bruised. She testified she still suffers .pain.

Doctor Levin testified that she came to his office on the night of the accident, suffering from severe shock, and he gave her treatment to allow her to rest and “sustain” herself. The left side of her hand, face and neck were contused and abraded. The interior of her mouth, her shoulder and as far down as the middle of the chest and both knees had abrasions and contusions. She was in bed about three weeks, and visited his office for two months after-wards. His bill was $70.'

' To measure pain and suffering by a financial standard is one of the duties of the jury. The compensation awarded in these cases was full and adequate, and perhaps slightly excessive, but the awards were not such as to shock the conscience of the court nor to demand the submission of the cases to another jury.

And now, to wit, July 3, 1928, the motions for judgment non obstante veredicto are refused and the rules for new trials are discharged.


text:
    Abrams v. Edelman.

      S. H. Steinberg, for plaintiff; J. C. Levi, for defendant.
    July 3, 1928.
   Martin, P. J.,

This suit was instituted to obtain payment of five promissory notes signed by defendant, each for the sum of $99.93, dated May 25, 1927, payable in two, four, five, six and seven months, respectively.

The statement of claim averred that for a valuable consideration defendant made and delivered the notes to the Atlantic Metal Spinning Company, and for a valuable consideration endorsed each of the notes before delivery; that, prior to the respective maturity of each of the notes, the Atlantic Metal Spinning Company for a good and valuable consideration endorsed and delivered the notes to Bital Allouf, who thereupon became the holder for value in good faith, without notice of any infirmity or defect in title; that, prior to maturity, Allouf endorsed and delivered the notes to plaintiff for a good and valuable consideration, who thereupon became the holder for value in good faith, without notice of any infirmity or defect in title; that the notes were presented for payment upon maturity, were not paid and were duly protested.

Defendant filed an affidavit of defense and a supplemental affidavit.

For the purposes of this argument, the averments of the affidavits must be accepted as true. It is averred by defendant that the execution and delivery of the notes was induced by an agreement to repair lamps purchased by defendant from the payee of the notes; that the lamps, when delivered, were not according to sample, and so imperfectly constructed as to be useless; that they were returned to payee, and the notes were executed in reliance upon a promise of payee to repair the lamps, but that he failed to make the repairs, continued to retain possession of the lamps, and the consideration for the notes failed. It is further alleged in the affidavit of defense that plaintiff is not a bona fide holder for value before maturity, but merely an agent of payee; that he has no title to the notes or right to recover in this suit.

The averments of the affidavits are sufficient to prevent the entry of judgment. Rule discharged.


author: Lewis, J.,

text:
    Emery v. Heintz Manufacturing Company et al.

      Todd. Daniel, for plaintiff; Sterling & Willing, for defendant.
    Oct. 31, 1928.
   Lewis, J.,

The disposition of this appeal from an award of compensation depends on whether claimant lost the use of his right hand. In the course of his employment, the claimant, on Sept. 29, 1926, met with an accident, as a result of which he suffered the amputation of the four fingers of his right hand, the line of amputation passing just in front of the knuckles. At the hearing de novo, claimant testified that he was at that time engaged in the work of rubbing down paints, in the course of which the only use he made of his right hand was “just pushing with the lower part of the palm.” He stated that he had no gripping power in the index finger and could “just barely hold a small coarse object.” He also stated that, following the accident, he was employed as an acetylene gas welder and that he used his right hand to hold the wires.

Dr. B. B. Neubauer stated that an examination of the right hand showed the “thumb intact, in good condition; all the movements of the joints are carried out to their full range, both in flexion and extension. The motor power of the thumb is good.” After describing in detail the condition of each finger, he continued: “The palm of the hand is in good condition. There is no scar tissue in the palm of the hand; there is no fascia contraction. The movements of the wrist joint are good, and are carried to their full range, both in flexion and extension. The motor power of the wrist is good. There is no atrophy of the muscles of the palm or dorsal surfaces of the hand. . . . The patient is able to approximate the thumb and the remaining portion of the index finger.” As a result of his examination, the witness gave it as his opinion that the loss sustained by the claimant was the loss of the fingers and not the loss of the use of the industrial hand, by which he stated he meant that the claimant was able to do some work with his hand.

Dr. Walter H. Blakeslee, after describing the hand in terms substantially corresponding to the former witness, gave it as his opinion that claimant did “lose the industrial use of the hand.” Upon cross-examination, he admitted that the motive power of the thumb and of the remaining portion of the index finger was good, and that the movements of the wrist joints were carried out to their full range. He stated that the use to which claimant was then putting his hand simply indicated “that he is making some adaptation of his hand and its remaining functions.” The board found as a fact that claimant had lost the use of his hand.

In the case of Massett v. Armerford Coal Mining Co., 82 Pa. Superior Ct. 579, Judge Keller said: “An award under paragraph (c) of section 306 contemplates the absolute loss of one of the members mentioned in the paragraph or such a permanent injury as is the equivalent of its loss. It must be such an injury as ‘destroys the usefulness of the member:’ Lente v. Luci, 275 Pa. 217, 223. . . . The expressions, ‘loss’ and ‘loss of the use,’ as used in section 306 (o), should be given their unrestricted and ordinary use; and the claimant’s eye, or the use of it, is not lost unless it is useless in any employment for which claimant is physically and mentally fitted: Chovic v. Pittsburgh C. S. Co., 71 Pa. Superior Ct. 350, 353; Grammici v. Zinn, 219 N. Y. 322; 114 N. E. Repr. 397.”

In Chovic v. Pittsburgh C. S. Co., 71 Pa. Superior Ct. 350, Judge Porter stated: “Whether a man has lost the use of a hand depends upon whether the hand has become useless in any employment for which that particular man is mentally and physically qualified.”

As was said by Judge Henderson, in a case very similar to that presented here: “Our inquiry now is whether the evidence sustains the award. . . . The question for the consideration of the referee and the Compensation Board was, therefore, whether the evidence fairly established a total loss of the use of the hand:” Gorman v. American Metal Co., 87 Pa. Superior Ct. 532, 535.

Our careful reading of the testimony has convinced us that the claimant has not suffered the loss of the total use of his right hand, although it is clear that his use of it will be greatly restricted, as is to be expected, in view of the loss of the four fingers. This is quite different from saying that the hand has become useless in any employment for which he is qualified. He certainly has the entire use of the palm of the hand, and is in fact using it, and also has a certain amount of use of the thumb in connection with the other fingers.

In support of the award, the able counsel for the board has cited Karlick v. Reading Coal and Iron Co., 89 Pa. Superior Ct. 396, and Hager v. Norristown Magnesia Asbestos Co., 87 Pa. Superior Ct. 159. In the latter case, Judge Linn pointed out that there was evidence that the usefulness of the right hand had been permanently destroyed — in the case at bar, all the testimony shows that the claimant’s hand is now being used — while in the former case the injury was to claimant’s eye, and while vision remained to a slight degree, it was necessary for him to bend his head down and look upward in order to use the eye at all. Under these circumstances, the court said that the referee was justified in finding that, for industrial purposes, the use of the eye had been entirely lost.

And now, Oct. 31, 1928, the appeal is sustained and the award of compensation based on total loss of the use of claimant’s hand is set aside. The cause is referred back to the Workmen’s Compensation Board to revise the award in accordance with the opinion.

NOTE. — For more recent amendment of Workmen’s Compensation Law, see Act of April 13, 1927, P. L. 186.


author: Stewart, P. J.,

text:
    Reading National Bank v. Minnich.

      Kirkpatrick, Maxwell & Chidsey and W. A. Frack, for plaintiff.

      H. M. Spongier, for defendant.
    March 19, 1928.
   Stewart, P. J.,

This is a rule on the plaintiff to show cause why a judgment should not be stricken from the record. An answer was filed, but no replication. At the threshold we are again met with the question that we have so often called counsels’ attention to, and that is the legal effect of omitting to file a replication. In addition to the authorities we have often cited, the learned counsel for the plaintiff cite Carr v. Ætna Accident and Liability Co., 263 Pa. 87, which was a proceeding to strike off a judgment. In the present matter, however, as our decision is in favor of the plaintiff, it would be useless to defer action simply to permit a replication to be filed and depositions to be taken. We called the prothonotary before the court upon the argument in the presence of counsel, and his statement was, in effect, that the affidavit of defense had been filed on Oct. 5, 1927, but it was not entered on the Continuance Docket on that date nor on Oct. 13, 1927, when the plaintiff’s counsel took judgment for want of an affidavit of defense. They were justified in so doing by the record. We must look at the record, not as it now appears, but as it was on the day when the judgment was entered, to wit, on Oct. 13, 1927, to see if there were any irregularities of record, and there were none; hence, the judgment must stand, but the record also shows another feature wherein the defendant is in default. The Practice Act of May 14, 1915, § 12, P. L. 483, provides: “The defendant shall file an affidavit of defense to the statement of claim within fifteen days from the day when the statement was served upon him. The affidavit of defense shall be as brief as the nature of the case will admit. It shall be sworn to by the defendant or some person having knowledge of the facts. It shall be served upon the plaintiff or his attorney at the address for the service of papers indorsed on the statement of claim, and shall be indorsed with the name of the defendant's attorney, or of the defendant if he defends in person, and an address within the county where all papers are to be served.” To meet the decision of the Supreme Court in Beishline v. Kahn et al., 265 Pa. 101, where the Supreme Court set at rest a question upon which many of the lower courts differed, by holding that “under the Act of May 14, 1915, P. L. 483, a judgment may be entered against defendant for want of an affidavit of defense before the return-day of the summons,” the legislature passed the Act of March 10, 1921, P. L. 16, re-enacting section 12, by adding: “And provided further, That no affidavit of defense shall be required to be filed under the provisions of this act in any case before the return-day of the writ or summons.” Therefore, by the plain wording of the act, the defendant should see to it that his affidavit of defense is not only filed, but served on the plaintiff or his attorney. The record in the present case shows that the affidavit of defense was not served on the plaintiff’s attorneys until Oct. 24, 1927, so that the defendant was in default even if he had filed his affidavit of defense on Oet. 5, 1927, in not causing it to he at once served on the plaintiff or his attorneys. The learned counsel for the plaintiff now argue that they took judgment without any notice at the time judgment was taken of the filing of the affidavit of defense and without any service of it on them prior to taking judgment, and that, therefore, the affidavit of defense must even now be considered a nullity. In Luzerne County National Bank v. Stout, 26 Dist. R. 1093, the syllabus is: “Under the Practice Act of May 14, 1915, §§ 10 and 12, P. L. 483, judgment will be entered for want of a sufficient affidavit of defense when an affidavit of defense was in fact filed in the office of the prothonotary within fifteen days, as required by the act, but no copy was served upon the plaintiff or his attorney, the copy intended for such service having been inadvertently filed with the original in the office of the prothonotary.” In Wright Wire Co. v. Levi, 28 Dist. R. 795, the syllabus is: “Under the Practice Act of May 14, 1915, P. L. 483, a copy of the affidavit of defense must be served upon the plaintiff or his attorney within fifteen days of the service of the statement.” The same view of the matter was taken by McCormick, J., in Glover v. Errich, 30 Dist. R. 720, although here the court refused to make absolute a rule for judgment for failure to serve a copy of the affidavit of defense. The court said the proper procedure was a rule to enter judgment for want of an affidavit of defense. The same view was held by Bechtel, J., in Seaman v. Mealey et al., 1 D. & C. 146, although his view of the remedy was that the affidavit of defense must first be gotten rid of by a rule to strike it off the record.

The fact, therefore, is that, conceding the affidavit of defense was filed on Oct. 5, 1927, not being served, it was a nullity.' Attorneys seem to have overlooked the matter of serving the affidavit of defense on the plaintiff or his attorneys. It is not enough to simply hand the affidavit to the prothonotary, but a copy should be given to the sheriff and arrangements made with him for immediate service on the plaintiff or his attorney. It would seem, therefore, that defendant’s relief would be by a petition to open the judgment. A case not cited by counsel, but which seems to us very important in this controversy, is DeKalb v. Rollison, 90 Pa. Superior Ct. 128. The facts are very similar, with the exception that in that case defendant notified plaintiff’s attorney by mail that he had filed the affidavit of defense and sent him a copy of the same. The prothonotary neglected to note the filing of the affidavit of defense on the Continuance Docket. The application was not to strike off the judgment, but to open it. Henderson, J., discussed the question fully and sustained the court in opening the judgment where the facts showed that the defendant had acted promptly and exhibited to the court a good defense. See, also, the excellent discussion of Walling, J., in Fuel City Manuf. Co. v. Waynesburg Products Corp., 268 Pa. 441. We may have power to substitute another rule for the one issued where the merits of the case demand. We have heretofore held that we have that power, and so have other judges, but we do not think we should do so in the present case. That is to say, we have examined the petition to strike off and the affidavit of defense. In the former, there is nothing that would move us to open the judgment, and the latter does not specifically deny the averments of the statement. On the argument, it was stated that the defense was that he did not sign the note; that he had signed some notes, but this was not among that number. We will grant a rule to show cause why the judgment should not be opened and defendant let into a defense, if a petition containing proper averments as to matters of defense and explanation of the failure to cause the affidavit of defense to he served on plaintiff, and delay in presenting any petition until Feb. 9, 1928, is presented to us within two weeks from this date. No execution to be issued in the meantime. An answer can then be filed and depositions taken upon the merits of the case.

And now, March 19, 1928, rule to show cause why judgment should not be stricken from the record is discharged.

From Henry D. Maxwell, Easton, Pa.


author: Biddle, Jr., P. J.,

text:
    Automobile Banking Corp., to use, v. Export Insurance Co.

      Carl B. Shelley and John. E. Myers, for plaintiff.

      Arthur S. Arnold and Jacob M. Goodyear, for defendant.
    March 6, 1928.
   Biddle, Jr., P. J.,

The present action was started to recover the damages alleged to have been suffered through the theft and subsequent destruction by fire, on Nov. 26, 1925, of an automobile which was insured against loss by theft or fire by the defendant corporation. The case came up for trial on May 19, 1927, and, owing to the condition of the pleadings, the evidence of the plaintiff necessary to support its claim was excluded, not because the evidence was not generally competent, but because, under the pleadings as they then stood, it was not admissible, not having been properly suggested in the pleadings; and, on May 20, 1927, the court, on motion of counsel for the plaintiff, withdrew a juror and continued the case, directing that the costs of the term should be paid by the plaintiff. These costs have not yet been paid. Subsequently, on Nov. 21, 1927, the plaintiff presented an amended statement and asked permission of the court to file the same, and, on that date, a rule to show cause why such permission should not be given was granted. To this rule an answer was filed by the defendant objecting to the allowance of the amended statement on a number of grounds, the most important being that the amended statement introduced a new cause of action after the date on which an action on the policy of insurance issued by it could have been brought on account of the loss of the particular automobile in question. Other objections were that the proposed amended statement of claim violated the provisions of the Practice Act in a number of respects. It is not necessary to discuss all of these points at the present time. The answer to the rule also objected to the allowance of the amended statement of claim on the ground that the costs as imposed in May, 1927, had not been paid by the plaintiff. We regard this last objection as well taken and as raising an insuperable objection to the allowance of the plaintiff’s request at this time; and the pending rule will, therefore, have to be discharged.

As the discharge of the rule, however, will be without prejudice to the right of the plaintiff to renew the application after the payment of the costs of the May Term, it may be well to outline briefly our views on some of the other objections raised by the defendant, the most important one being, as we have said, that the amended statement of claim would introduce a new cause of action after the time within which the plaintiff could have brought an action on the policy of insurance. As regards the principle involved, there is no room for doubt. If the amended statement does introduce a new cause of action, it would have to be refused. If it does not, then it may be allowed, unless some other valid objection is raised. In the original statement, it was alleged that the use-plaintiff was the owner of the automobile in question at the time of the issuance to him of the policy declared upon, and the policy declared upon was a certificate issued to him on July 3, 1925; that certificate declaring that under policy B-203 of Export Insurance Company issued to Automobile Banking Corporation, the use-plaintiff’s automobile was insured for a sum not exceeding $1360, and that “the automobile described is fully paid and is not mortgaged or otherwise encumbered except as follows: Subject to a note of $1251.36 secured by Pennsylvania lease held by the Automobile Banking Corporation.” The proposed amended statement sets out that the use-plaintiff was at the time of the issuance of this certificate the equitable owner of the automobile in question under a bailment lease from the Automobile Banking Corporation which held the legal title, the use-plaintiff having the right to purchase for one dollar at the expiration of the lease upon his full compliance with its terms, and that he had fully complied with the terms of the lease. It also set out in full not merely the certificate issued to him personally, but the policy B-203 issued to the Automobile Banking Corporation, which is referred to in his certificate. The amended statement also set out that, subsequent to the theft and destruction of the automobile in question, the defendant company had promised to pay to him the full amount of the insurance, but did not set out when this was done nor by whom the alleged promise was made, nor the manner in which it was made. So far as this last averment is concerned, if it was intended to use it as a basis of a recovery against the defendant, it would clearly constitute a new cause of action, and should, therefore, be refused: Grier v. Assurance Co., 183 Pa. 334.

At the argument of the case, the plaintiff contended that the purpose of this paragraph was to show a waiver by the defendant of strict compliance by the plaintiff with some of the terms of the policy of insurance. For this purpose it would not be objectionable, but the purpose should clearly appear in the pleadings; and it would probably be better to omit it altogether, as the plaintiff would be allowed to show this waiver on the trial even without referring to it in the statement of claim: Kearney v. Security Ins. Co., 67 Pa. Superior Ct. 179.

The other changes, namely, the specific averment of the manner in which the use-plaintiff was interested and the setting out in full of policy B-203 issued to the Automobile Banking Corporation, we do not regard as setting up a new cause of action; and these changes would not, therefore, be objectionable on this ground. Notice of each one was given in the original statement of claim, because the copy of the certificate mentioned in the original statement contains a specific reference to policy B-203 and shows that the certificate in question depends upon it for its force and effectiveness, and the setting it out in full, therefore, simply supplies a defect in the original pleading and does not introduce new subject-matter. So, as to the averments in regard to the manner in which the use-plaintiff held the automobile in question, the certificate which is attached to the original statement shows that the use-plaintiff held under a Pennsylvania lease from the Automobile Banking Corporation, and the definite averment in the amended statement of claim, therefore, simply sets out clearly and fully what was plainly suggested by the original pleading. The effect of these changes is not to shift the cause of action, but merely to put the use-plaintiff in a position where he may introduce the testimony which is essential to the support of his claim.

“. . . the true criterion is whether the alteration or proposed amendment is a new and different matter, another cause of controversy, or whether it is the same contract or injury and a mere permission to lay it in a manner which the plaintiff considers will best correspond with the nature of his complaint and with his proof and the merits of his case:” Cassell v. Cooke, 8 S. & R. 287; Wilhelm’s Appeal, 79 Pa. 120, 135.

The purpose of the original action was, as we have said, to recover the loss suffered through the destruction of a particular automobile which was covered by an insurance policy issued by the defendant and in which both legal and use-plaintiff were interested. Notice of that was clearly given in the original statement. The amended statement, if filed, would seek to recover the same damages for the loss and destruction of the same automobile at the time mentioned in the original statement and to the extent indicated by the same policy of insurance issued by the same defendant. The purpose of the amendment is to permit the plaintiff to introduce the testimony that was offered at the original trial and which was then excluded, as we have said, because the pleadings in the shape in which they stood at that time did not comply with the provisions of the Practice Act in a manner to permit that particular testimony to be offered; and this, we think, is doing what was said by the Supreme Court above, to wit, laying the claim in a manner that will best correspond with the nature of his complaint and with his proof. In one of the latest cases on the subject, Goldberg v. Friedrich, 279 Pa. 572, the Supreme Court said: “The tests to be applied when the question presented is whether an amended statement presents a new and different cause of action are, would a judgment bar any further action on either, does the same measure of damages support both, is the same defense open in each, and is the same measure of proof required?”

In the instant case, if these tests are applied to the original and the proposed amended statement, the answer in each instance would be in the affirmative, and that being the case, it would necessarily follow that a new cause of action is not set up by the other changes sought in the amended statement of claim.

Some of the objections to the allowance of the amended statement of claim go rather to the form than to the substance of the amendments, contending that a number of paragraphs violate the provisions of the Practice Act of 1915. We think that some of these objections are well taken, but we also think that they should not be raised or passed upon in the present proceeding. If the amended statement is allowed, it will still be open to those objections, which should be raised, some on a motion to strike off the statement of claim as not in compliance with the Practice Act and some on a rule for a more specific statement. It is possible, however, that, if the plaintiff renews the application hereafter, a closer study of the matters involved will induce him to meet the objections raised or to obviate them so that any discussion, of these matters would become unnecessary, and it is, we think, out of place at the present time.

And now, March 6, 1928, the rule to show cause why the plaintiff should' not be allowed to file an amended statement of claim is discharged, at the cost of the plaintiff, without prejudice, however, to the right of the plaintiff to renew the application after the costs of the May, 1927, term of court have been paid. Prom Francis B. Sellers, Carlisle, Pa.


author: McLaughry, P. J.,

text:
    Removal of Supervisors of West Salem Township.
    Jan. 14, 1928.
   McLaughry, P. J.,

Twenty-five or more citizens of West Salem Township presented a petition to the court, under the provisions of the Township Code of July 14, 1917, P. L. 840, setting forth that the supervisors of said township had failed to maintain the public roads and highways of said township in accordance with the law. The prayer of the petition was that the court appoint three disinterested persons to examine the highways and report to the court their findings in accordance with the provisions of the act of assembly, and that the supervisors be removed from office and their office be declared vacant.

The petition set forth at length a number of roads in the township where it was alleged the supervisors had failed to give proper attention, and also set forth that the supervisors had been given notice numerous times to repair the said roads.

Upon presentation of the petition, the court appointed three persons taken from the board of viewers of the county to examine and report to the court their findings. This action was brought under that part of the Township Code as follows:

“Section 192. If any township officer in any township of the first or second class refuses or neglects to perform his duties, the Court of Quarter Sessions, upon complaint in writing by twenty-five citizens, owners of real estate residing in the township or district, may issue a rule upon such officer to show cause why his office should not be declared vacant and another appointed in his stead. Such rale shall be made returnable not less than two weeks from its date of issue. Upon hearing and proof that the facts alleged in the complaint are true, the court may declare the office vacant and appoint another in his stead, to hold office during the term of the officer deposed.

“Section 193. If such complaint shall allege that the public roads and highways of any township are not maintained in accordance with law, the court may appoint three persons who shall examine said highways and report to the court their findings. In all such cases, the complainants shall first enter security, in such sum as the court may fix, to pay all costs.”

It appears that the order of court appointing the persons to examine the roads was made on April 18, 1927, and, after due notice was given, a view was held on May 13, 1927. It appears from the report that, between the time the court appointed the viewers and the date set for the view, the supervisors improved many of the roads named in the petition. It was, therefore, not possible for them to make-a report setting forth the condition at the time the petition was presented, and a hearing was held and testimony taken from a number of witnesses.

The viewers in the report make the following conclusion: “The viewers also found from their inspection of the township roads in West Salem Township that the said township roads, as a whole, with ditches and bridges, are not noticeably either worse or better than those usually to be found in the other townships of Mercer County.”

The viewers also found the following fact: “That the supervisors repaired, or caused to be repaired, the roads referred to in items 6, 9, 10, 11, 12 and 13 after the filing of the petition and appointment of the viewers in this case and before the date set for the view; and the viewers were not able to see the condition complained of.”

The viewers also found as a fact: “That the supervisors of West Salem Township worked on and improved the roads complained of during the two weeks preceding the view and up to within two days of the view, and the viewers were not able to see the condition of the roads complained of.”

Inasmuch as the viewers have reported that at the time they examined the roads they were in a reasonably fair condition, we do not feel justified in vacating the office of supervisors in West Salem Township as under the authority given to the court in the act of assembly. Under the laws of Pennsylvania, any person who is placed on a board of supervisors must keep the roads in reasonable condition, or he is liable to dismissal or punishment. The law is that the roads must be kept in reasonable condition, and the responsibility for doing this is placed upon the supervisors. Complaints are constantly being made to the district attorney and to the court, and we fully appreciate that the supervisors do not realize the responsibility placed upon them and what the law may require in case of their failure to perform their duties. The testimony shows that on numerous occasions the supervisors of West Salem Township had been notified of the conditions in different localities, but had given very little attention to them until after certain citizens of that township had presented a petition to the court, under the Act of Assembly of 1917, and viewers had been appointed to examine the roads. Between that time and the day set for the view, the condition of the roads was changed by improvements such as should have been made prior to that time. The viewers were unable to determine whether the facts set forth in the petition were true without taking testimony, and this made additional cost.

We feel satisfied from the testimony, which we have examined carefully, that the petitioners had some justification at the time they presented the petition, but we are not convinced that we should grant the prayer of the petitioners and declare the office vacant. We do feel, however, that, inasmuch as the supervisors were to some extent negligent in the performance of their duties, and they were responsible for most of the cost in the case, they should pay the costs.

Orderj — And now, Jan. 14, 1928, after arguments of counsel and an examination of the report of the viewers and the testimony taken before them, the rule to declare vacant the office of supervisors in West Salem Township is discharged, and the supervisors, Herman Melvin, Ralph Mowry and William Mathay, shall pay the costs, $175.

From W. G. Barker, Mercer, Fa.


author: Patterson, P. J.,

text:
    Shatzer v. Abbott’s Alderney Dairies, Inc., et al.

      Robert W. Smith, for plaintiff; John Woodcock, for defendant.
    July 27, 1928.
   Patterson, P. J.,

This is a motion to strike off mechanic’s lien filed by the plaintiff for labor and materials used in the plumbing and drainage of a silk mill plant owned by the defendant. Also, for loss and damage sustained by the plaintiff by reason of a breach of the contract. The defendant assigns nine reasons to sustain the motion. The reasons, one to eight, inclusive, charge that the lien is defective, insufficient, and not within the requirements of the act of assembly as to the time the work was done; the items of woi-k, labor and material furnished; the character of the estate involved; the contract with the owner; that the work as required was not fully performed; whether or not the contract was verbal or written; description of the work performed; and that the lien is defective and insufficient on its face and that it contains lumping charges.

It is necessary that the lien shall meet the requirements of the act: Dyer v. Wallace, 264 Pa. 169; Brant v. Hartrick, 60 Pa. Superior Ct. 507. The several defects as set forth in these assignments may be corrected by amendment and are not sufficient to sustain the rule to strike off the lien. In May v. Mora, 50 Pa. Superior Ct. 359, it is held: “The fifty-first section of the Act of 1901 in the following language conferred upon the present claimant the right to amend his lien and defined the limitations within which that right must be exercised: ‘Any claim . . . may be amended from time to time . . . by leave of the court, upon petition for that purpose, under oath. Such amendment shall be of right, saving intervening rights; except that no amendment of the claim shall be allowed, after the time for its filing has expired, which undertakes to substitute an entirely different property from that originally described in the claim; but the description, of the property may be amended so as to be made more accurate.’ ” And, further, in the same opinion, we find the following language: “There is no limit as to the time of making amendments, and the reasonable presumption is the act intended that proper amendments can be made at any time during the existence of the lien or course of the trial.”

And in Bohem & Bros. v. Seel, 185 Pa. 382, it is held: “The lien was filed in time, but was defective on its face by being filed by a sub-contractor and containing only a lumping charge. An amendment was asked after the six months in which a lien could have been filed. So, in the present case, if Norton was in fact the owner, his contract with plaintiff for a lump sum was valid and would sustain the lien. The plaintiff should be allowed to amend his claim of record so as to enable him to prove the facts if they are as he avers.”

The ninth reason is as follows: “The claim is defective, in that it contains items of damage and loss sustained by the plaintiff by reason of alleged breach of contract.” The act of assembly makes no provision for the filing of a lien for damages sustained by the breach of contract and the rule is made absolute as to such part of the lien as undertakes to establish damages and loss as a result of a breach of contract.

“By no sort of construction can a mechanic’s lien be made to embrace anything, whether labor or materials, not actually furnished. Plaintiff had a right to subject the buildings to a lien for the work they did upon and about its construction; but a claim for anything beyond necessarily sounded in damages, and these can never be made the subject of a mechanic’s lien:” Deeds v. Imperial Brick Co., 219 Pa. 579, 582.

The rule to strike off the lien as based upon the eight reasons already referred to is discharged and the plaintiff is allowed fifteen days in which to file an amendment meeting the requirements of the statute.


author: Groff, J,,

text:
    Miller Rubber Company v. Gould.

      Geisenberger & Geisenberger, for plaintiff.

      J. Andrew Frantz, for defendant.
    March 24, 1928.
   Groff, J,,

This is a suit in assumpsit brought by the Miller Rubber Company of New York v. James W. Gould, surety (which term we use for reasons hereinafter explained), to recover the sum of $2076.09, with interest thereon from Sept. 15, 1927.

The goods, for the value of which suit is brought, were sold by the plaintiff to one J. Z. Brubaker, of Manheim, Pa., after James W. Gould, the defendant, had signed an agreement, of which the following are the principal parts, so far as this controversy is concerned, and transmitted the same to the plaintiffs:

“To The Miller Rubber Company of New York:

“In consideration of your selling goods, wares and merchandise to J. Z. Brubaker, Manheim, Pa., and especially in consideration of the credit which you may hereafter extend to J. Z. Brubaker, Manheim, Pa., we I hereby, jointly and severally guarantee the payment when due, of any and all present or future indebtedness to you now owing, or hereafter incurred, by J. Z. Brubaker, Manheim, Pa., on account of goods, wares and merchandise sold by you to the said J. Z. Brubaker, Manheim, Pa., whether said indebtedness is evidence by book account, negotiable instrument or instruments, or in any other manner, not exceeding an indebtedness of Three Thousand Dollars ($3000) at any time, for which sum this is an absolute and continuing guarantee, to continue until you shall receive from us me a notice in writing of the revocation of same, but such revocation shall not in any way relieve us me from liability for any indebtedness contracted prior to the service of such notice.

“We I hereby, upon the considerations aforesaid, waive notice of the acceptance of this guarantee, and of credit given or to be given to said J. Z. Brubaker, Manheim, Pa., and waive demand for payment thereof upon the purchaser, and waive notice of default in payment of any of said indebtedness, and agree that this guaranty shall not be affected by your taking or holding security or collateral for such payment, and consent that such indebtedness, or any portion thereof, may, without notice to us me, be extended from time to time before or after the same becomes due, and that such extension or extensions may be granted by you either verbially or by the acceptance of a negotiable instrument, or other evidence of debt, and agree that the term payment wherever used in this guaranty is understood and agreed to mean the payment in money and your acceptance of a negotiable instrument or instruments as payment shall for the purposes of this guaranty be considered merely an extension in the time of payment, and that such extensions shall not release or affect our my liability hereunder, and agree that the terms, waivers and agreements herein contained shall be strictly construed against us, me and in your favor, so as to create and maintain, irrespective of anything you may do or cause to be done, a liability on the my part which shall never be affected, waived, or released, except by the actual payment in money to you of all indebtedness covered by this guaranty.”

To the statement of claim defendant filed an affidavit of defense under section 20 of the Practice Act of May 14, 1915, P. L. 486, raising a question of law, without answering the averments of fact, in which he avers that the contract above, in part recited, is a contract of guaranty and not one of suretyship. That is the question for the court to determine.

If the defendant’s contention is right, then the plaintiffs cannot sustain this action. If the plaintiffs’ contention is right, then, under the law, the paper above referred to is a suretyship, and the action in the form it was brought can be maintained presently against James W. Gould, the defendant.

“A surety is primarily liable upon his covenant, and may be proceeded against without recourse to him for whom he has engaged to answer:” Supplee v. Herrman, 16 Pa. Superior Ct. 45.

We find the Act of July 24, 1913, P. L. 971, provides as follows:

“That every written agreement hereafter made by one person to answer for the default of another shall subject such person to the liabilities of suretyship, and shall confer upon him the rights incident thereto, unless such agreement shall contain in substance the words: ‘This is not intended to be a contract of suretyship,’ or unless each portion of such agreement intended to modify the rights and liabilities of suretyship shall contain in substance the words: ‘This portion of the agreement is not intended to impose the liability of suretyship.’

“Section 2. This act shall not be construed as changing the rules of law heretofore existing respecting the disability of any person to bind himself or herself by a contract of suretyship, or respecting the admissibility of evidence to alter, add to, or vary a written contract.”

• An examination of the agreement above referred to shows that it does not contain the words which would make it a guaranty and not a suretyship, viz.: “This is not intended to be a contract of suretyship,” nor does any part of it contain these words, “This portion of the agreement is not intended to impose the liability of suretyship.”

Therefore, we think that it comes directly within the provision of the act just quoted and is a suretyship with the right of the plaintiff to proceed directly against the surety.

In Miners State Bank v. Auksztokalnis, Administrator of Michael Rosenberg, deceased, 283 Pa. 18, it appears that on Jan. 5, 1920, on the back of a promissory note payable on demand for $5000 the defendant’s decedent had signed the following: “For value received, I do hereby guarantee payment of the Note 5,” and signed his name. It was contended in that case that the endorsement was a guarantee and not a suretyship, and the court held in-such case the Act of July 24, 1913, P. L. 971, applies, and the endorser cannot be treated as though only a general guarantor, in the absence of any words in the endorsement necessary to make the liability assumed other than that of a surety.

And in Paper House of Pennsylvania v. Frederick, 6 D. & C. 728, it appears that on April 19,1923, the defendant was a general manager of the Allentown Printing and Publishing Company, a corporation. He forwarded the following telegram to plaintiff:

“Directors meeting prevented call us nine thirty long distance we want to make contract for weekly shipments of paper I personally guarantee thirty day payment and we want to have a carload shipped at once phone without fail for instructions.”

In pursuance thereof, plaintiff shipped a quantity of paper to the Allentown Printing and Publishing Company, which has since become insolvent and for which a receiver was appointed by the court. Suit was brought against the surety, and an affidavit of defense was filed raising the same question of law that it raised here. It was held by the court:

1. That an averment that plaintiff had used due diligence to recover from principal was not necessary.

2. That it was unnecessary to allege that defendant had accepted the guaranty; and

3. That the position that the statement did not reveal a consideration for the guaranty was untenable.

And, again, we find in the ease of Bassick Co. v. Bright, 8 D. & C. 45, where a suit was brought against a surety who had guaranteed in writing an account for the goods to be sold to a corporation of which he was president, with a guaranty in writing using the word “guarantee” instead of “surety,” it was held that he, the “guarantor,” becomes a “surety” under the Act of July 24, 1913, P. L. 971, unless the writing contains in substance the words, “This is not intended to be a contract of suretyship.”

We, therefore, conclude, after a careful consideration of the Act of July 24, 1913, P. L. 971, and the cases decided thereunder, together with the surety-ship contract submitted to us, that the agreement constitutes a “suretyship” and not a “guaranty,” and that there is a sufficient consideration on which to base the action, and that there is no virtue in the affidavit of defense.

On a further careful examination of the other parts of the affidavit of defense, and after a careful examination of the cases cited in defendant’s brief, we are convinced that there is nothing in defendant’s contention, and we decide the questions of law raised in the affidavit of defense against the defendant and direct that he file a supplemental affidavit of defense to theaverment of facts of the statement within fifteen days from the filing of this opinion. Prom George Ross Eshleman, Lancaster, Pa.


author: Stern, P. J.,

text:
    American Fruit Growers, Inc., to use of Louis Sabarof, Inc., v. Pacific Electric Railway Company et al.

      W. Meade Fletcher, Jr. (with him White & Wetherill), and J. Howard Rhoads, for rule.

      Samuel L. Einhom, contra.
    Nov. 3, 1928.
   Stern, P. J.,

This is a rule to show cause why a writ of foreign attachment should not be dissolved. The rule was taken by the Pennsylvania Railroad Company, garnishee, and the contention is that the plaintiff’s affidavit of cause of action is insufficient in several respects. One of these is that the affidavit is not positive, in that the facts alleged therein are stated to be true and correct merely to the best of the affiant’s knowledge, information and belief. This point seems to be well taken: McLennan v. Public Utilities Construction Co., 245 Pa. 567.

Another complaint is that it is not shown that there was an unreasonable delay in the shipment, but merely that the consignment arrived a day later than the “ordinary usual and normal time consumed by similar shipments.”

This point also seems to be well taken, in that it is not enough to allege or prove that the time occupied in transportation is unusual; it must be so unusual as to be more reasonably attributable to the negligence of the carrier than to any of the ordinary causes of delay. The bill of lading itself says “that the carrier is bound only to proceed with reasonable dispatch.” While it is true that in the sixteenth paragraph of the affidavit it is alleged that the defendant failed to use reasonable care and diligence in making delivery with reasonable dispatch, the paragraph goes on merely to say that “had the shipment been carried within the ordinary usual and normal time consumed by similar shipments,” etc., the shipment would have arrived a day earlier, but there is no direct statement that the shipment in fact was not made with reasonable dispatch, even though the transportation took a day longer than usual: Catanzaro & Sons Inc. v. Southern Pacific Co., 90 Pa. Superior Ct. 578.

Another defect in the affidavit is that it states merely that the goods were found to be in a deteriorated and damaged condition, without stating in what respect or to what extent. Moreover, in estimating the alleged damages, it is said that the fair and reasonable market value of the commodity at Philadelphia on Oct. 24, 1927, is $1200, whereas the fair and reasonable market value of the said commodity at Philadelphia on Oct. 25, 1927, in the condition in which it arrived was $972, and the loss claimed is the difference of $228. It is not shown by the affidavit, therefore, whether this difference was due partly or entirely to the condition of the merchandise or partly or entirely to the fact of a day’s difference in the market. For a change in the market, the difference would not, under the terms of the bill of lading, be recoverable. The question, therefore, is not as to the difference in value of the commodity on the two days, but as to the difference between the value of the goods as it would have been had they arrived in good condition as compared with their value in the alleged deteriorated condition, irrespective of any difference in the market values of the commodity generally as between the two days in question.

Finally, it would seem, under the authority of Davis v. Farmers’ Co-operative Equity Co., 262 U. S. 312, and Atchison T. & S. Ry. Co. v. Wells, 265 U. S. 101, that an attachment in the present case would be a burden on interstate commerce, and, therefore, in violation of the commerce clause of the Constitution. The plaintiff, as appears from the bill of lading, is American Fruit Growers, Inc., of California; the defendant is Pacific Electric Railway Company, a foreign corporation of the State of California. Where the act of negligence complained of occurred does not appear; there is nothing to indicate that it occurred in Pennsylvania. We, therefore, have a case where a resident of California has a claim against a railway company also domiciled in California and seeks to enforce its claim by attachment proceedings in Pennsylvania, and, as above pointed out, without any allegation that the cause of action arose in this State. To make a transportation company come from California to Pennsylvania to establish its defense as against a resident of California would clearly seem to be a burden on interstate commerce within the principle laid down in the authorities cited; while permissible under the laws of Pennsylvania, it would, in interpreting the laws of Pennsylvania to give such a right to the plaintiff, involve a violation of the commerce clause of the Constitution. It is true that in the State of Missouri v. Taylor, 266 U. S. 200, it was held that the attachment in that case was proper, but the ground for the distinction appears to have been that there the plaintiff was a resident of the state in which the attachment was brought, that is to say, had a usual place of business within that state. In the present case, it does not appear that American Fruit Growers, Inc., of California, had any place of business or any domicile in the State of Pennsylvania, and, therefore, the case would seem to come within the scope, not of the last mentioned but of the two prior cases referred to. It is incumbent upon the plaintiff in its attachment to set forth all the facts necessary to establish jurisdiction. It is true that it is alleged that the use-plaintiff is a citizen of Pennsylvania, but the recovery must be had according to the status of the legal plaintiff, and jurisdiction cannot be conferred merely by an assignment of the plaintiff’s claim.

For the reasons thus indicated, the rule to dissolve the attachment is made absolute.


author: Smith, J.,

text:
    Townsend-Whelen & Co. v. Craig.

      Duane, Morris & Heckscher, for rule; H. M. Schell, contra.
    Nov. 7, 1928.
   Smith, J.,

This is a rule for judgment for want of a sufficient affidavit of defense.

On Dec. 17,1927, the defendant instructed his agent, Provident Trust Company of Philadelphia, to sell for his account ten shares of stock, par value $25, of the Continental Insurance Company, at market. On the same day, Provident Trust Company instructed the plaintiffs, Townsend-Whelen & Co., licensed stockbrokers of Philadelphia, to sell these shares. The Continental Insurance Company was listed on the New York Stock Exchange. On the same day, the plaintiffs instructed their New York correspondent to sell these shares of stock at market. They were sold at $296.75 per share. The plaintiffs then sent a confirmation of the sale to Provident Trust Company, which confirmation recited that it was agreed between broker and customer that all transactions are subject to the rules and customs of the New York Stock Exchange. Prior to Dec. 12, 1927, the Continental Insurance Company voted to increase its stock from $10,000,000, par value $25 per share, to $15,000,000, par value $10 per share, and declared a stock dividend of 50 per cent, of stock, par value $10 per share, “payable December 30, 1927, to stockholders of record December 12, 1927,” which stock dividend amounted to twelve and one-half shares on defendant’s above-mentioned stock. On Dec. 10, 1927, the New York Stock Exchange issued a ruling to its members that on and after Dee. 12, 1927, the stock of the Continental Insurance Company would not be quoted ex-dividend, but that all deliveries of such stock must be accompanied by a due bill assigning to the purchaser the stock dividend in question. In making the sale, Clark, Dodge and Company, to comply with such ruling, delivered other Continental Insurance Company stock which they had in their possession, together with a due bill executed by them as required, and the price of $296.75 per share was the price obtained for such sale, which price, less commission, was remitted by plaintiffs to Provident Trust Company and by it credited to defendant.

On Dec. 19, 1927, defendant, through Provident Trust Company, delivered to plaintiffs his certificate for ten shares of the old stock of Continental Insurance Company, par value $25, endorsed in blank. On Jan. 6,1928, Clark, Dodge and Company demanded of the plaintiffs delivery of the twelve and one-half shares of stock dividend on defendant’s stock and plaintiffs made demand of the same of the defendant through Provident Trust Company. Defendant refused to make such delivery, although he had received this stock dividend. It is the contention of the defendant that, since he had not been informed of the ruling of the New York Stock Exchange, he had the right to retain the stock dividend. The plaintiffs, to make good the sale under the Stock Exchange ruling, purchased twelve and one-half shares of such stock on the open market for $995.31, and it is in this amount that they make claim against the defendant.

There is no dispute upon any question of fact, so this question may be properly decided upon the pleadings. The vital question is: Was this defendant bound by the special ruling of the New York Stock Exchange? His instructions were to sell the ten shares of the Continental Insurance Company stock at market. The defendant contends that prior to the sale the plaintiffs did not advise him or Provident Trust Company of the ruling of the New York Stock Exchange, and that if they had he would not have sold his stock.

The only place where this stock could be sold was on the New York Stock Exchange. The customs, usages and rulings of stock exchanges are binding upon those trading or doing business therein. In 4 Ruling Case Law, page 263, paragraph 15, it is stated: “When one employs a broker to negotiate the sale or purchase of stocks or staple commodities in a particular market or exchange, he is deemed in the eyes of the law to intend that the mode of performance shall be in accordance with the established customs and usages of such market or exchange so long as the course of trade and the regular usage of business therein is neither immoral, unlawful, nor unreasonable, nor contrary to the express agreement of the parties. So conclusive is this presumption that the principal is bound by it, irrespective of his familiarity with, or ignorance of, such customs and usages. The reasoning underlying the seeming harshness of such a rule is that when a client employs a broker to transact business for him upon a certain exchange, he necessarily clothes him with sufficient authority to carry it through, and as the broker can only discharge the purpose of his employment by conforming to the rules and usages of the exchange, it naturally follows that he must be authorized to do so. Consequently, if a client sees fit to confer such authority without first informing himself as to such rules and usages, he is thereafter estopped from pleading his ignorance of them.” The averment of the defendant that he had no knowledge of this ruling of the New York Stock Exchange is no defense.

In Snellenburg v. Levitt, 282 Pa. 65, Frazer, J. (on page 69), said: “Defendant also avers he had no personal knowledge or means of knowledge of the amount of commissions earned by him during his employment, that such knowledge is in the exclusive control of plaintiff, and, further, that he is informed and believes and expects to be able to prove on the trial of the case that plaintiff did not allow him the rate of commission provided in the contract. Assuming he did not have the means of knowing the exact amount of commissions he had earned, it was his duty, under Buehler v. United States Fashion Plate Co., 296 Pa. 428, to make inquiry of plaintiff to obtain the necessary information. Had such demand been made and plaintiff refused the information, defendant would then have been in a position to aver that he had exhausted all sources of knowledge open to him for the purpose of determining the truthfulness of his averments and that he believed, from his general knowledge of the matter, that the amount was incorrect and expected so to prove at the trial of the case. He failed to do this and contented himself with general averments of lack of knowledge of the matter. This was insufficient to prevent judgment. As a matter of fact, it is apparent his real defense was based on the construction of the contract rather than on any dispute as to the items going to make up the account: Montgomery v. Lindsay, 44 Pa. Superior Ct. 516.”

The stock dividend had been issued prior to Dec. 12, 1927, and payable on Dec. 30, 1927. It was, therefore, subject to the ruling of the New York Stock Exchange.

The burden was upon the defendant to have placed any condition or restriction upon the sale of this stock. Having failed to do so or to make inquiry of the broker authorized to sell the same to ascertain if there was any ruling of the Exchange which would affect or regulate the sale of this particular stock, he is bound by such ruling made thereon. Were this not so, it would be impossible to carry on the efficient and practicable operation of any stock exchange where a considerable volume of business is done daily in the purchase and sale of many kinds of securities upon orders from distant cities.

The principle is established that where a broker has sold stock for his principal and the latter has refused to deliver it, the broker has a valid claim for the difference in price at which the stock was sold and the price on the market at which the broker bought “to cover:” Mitchell v. Hartsell Mills Co., 276 Pa. 439.

An examination of the affidavit of defense shows that it raises no issue of fact. Therefore, the rule for judgment for want of a sufficient affidavit of defense is made absolute.


text:
    Beamer v. Stanley Company of America et al.

      T. Daniel, for plaintiff; G. H. Detweiler, for defendants.
    July 30, 1928.
   Martin, P. J.,

William Roy Beamer was employed by the Stanley Company of America at its Ardmore Theatre as assistant manager. On the afternoon of Dec. 23, 1926, while in the theatre, decedent was handling and exhibiting to some persons an automatic pistol which had been brought to him by his father on the previous Sunday. During the time that he was handling the pistol he was warned to be careful, that it might be loaded, but he assured those to whom he was exhibiting the revolver that it was not loaded. Shortly after he made that statement, three clicks were heard by one of his fellow-employees, followed by a sudden flash, and the deceased fell to the floor with a bullet through his head that caused his death.

A claim for compensation was made on behalf of his widow and a child. The referee awarded compensation. On appeal, the Compensation Board reversed the finding of the referee and set aside the award.

A rehearing was granted, but the board sustained its former findings and denied compensation. Claimant has appealed to this court and assigned exceptions, alleging errors in the decision of the Workmen’s Compensation Board reversing the award of the referee, and disallowing compensation; in its conclusions that decedent was not killed in the course' of his employment; that decedent was not engaged in the business or affairs of his employer, and was doing something foreign to his employment; that the defendant and the insurance carrier are not liable under the Compensation Act and its amendments for the death of decedent, and that the Workmen’s Compensation Board erred in failing to affirm the award of the referee.

The claim is based on section 301 of the Compensation Act, which provides that “compensation shall in all cases be made by the employer for personal injury to, or for the death of, such employee by accident in the course of his employment, . . . without regard to his negligence, . . . except when injury or death is intentionally self-inflicted;” and that “the term injury by accident in the course of his employment, as used in this article, shall not include injury caused by an act of a third person, intended to injure the employee because of reasons personal to him, and not directed against him as an employee, or because of his employment, but shall include all other injuries sustained while the employee is actually engaged in the furtherance of the business or affairs of the employer, whether upon the employer’s premises or elsewhere, and shall include all injuries caused by the condition of the premises, or by the operation of the employer’s business or affairs thereon, sustained by the employee, who, though not so engaged, is injured upon the premises occupied by or under the control of the employer, or upon which the employer’s business or affairs are being carried on, the employee’s presence thereon being required by the nature of his employment.”

It was held by Commissioner Fleitz in his opinion: “It will be noted that the foregoing clauses relating to ‘injury by an accident in course of his employment’ do not purport to define that phrase. They provide only that certain injuries shall not be included in the term and that certain others shall. They explain but do not limit the term, except as to provide what shall not be included thereby. Under the interpretation of this section, our appellate courts have repeatedly held that if the accident happens during the course of his employment, compensation will not be denied because the employee does something beside or apart from the thing which he was employed to do, provided such thing is not wholly foreign to his employment:’ Dzikowska v. Superior Steel Co., 259 Pa. 578.”

The evidence shows that the decedent had been in the employ of the company for a considerable time without having in his possession a revolver, and it was not known by his employer that he had a revolver on his person in the theatre, and there was no evidence that it was necessary for him to have the revolver to protect himself or the property of his employer while acting as assistant manager. There was no reason for the attempt to clean it when he procured oil from another employee, and no reason for an attempt to discharge the weapon at the time he shot himself, after having been warned that it might be loaded.

At the time of the accident he had ceased to attend to the business of his employer, and was working with the pistol for himself, for his own amusement in cleaning it, exhibiting to his friends and pulling the trigger before the shot was fired that killed him.

The case might have a different aspect if the deceased had been accidentally shot by a revolver on his person while attending to the business of his employer; but he took the revolver to the place where he worked without the knowledge of his employer, and for his own amusement and that of his fellow-employees played with it, attempted to discharge it, and fired the loaded chamber that killed him. To hold his employer liable under the Compensation Act would go beyond any of the provisions of the act or decisions of the courts.

Berlin v. Crawford, 86 Pa. Superior Ct. 283, was cited as an authority to support an award in this case. In that ease death was caused by the accidental discharge of a revolver in the home of the decedent on the premises of his employer, where his employment required his presence during the entire twenty-four hours. There was no evidence of abandonment by him of the course of his employment or that he was engaged at the time in something foreign thereto.

In the present case the deceased had abandoned his employment for the purpose of cleaning his revolver and exhibiting it to his friends.

The case is within the rule of Shoffler v. Lehigh Valley Coal Co., 290 Pa. 480, 483, where Mr. Justice Kephart stated: “Under our Workmen’s Compensation Act, the fact of employment is not the sole basis for compensation. It requires, also, that the injury shall have occurred in the course of employment. The expression ‘in the course of employment,’ as used in the law of master and servant, means while injured in the service of the master, and is not synonymous with ‘during the period covered by his actual employment.’ Under the Compensation Act, an injury in the course of employment embraces all injuries received while engaged in furthering the business of the employer, and injuries received on the premises, subject to these limitations: (1) The employee’s presence must ordinarily be required at the place of injury; or (2) if not required, the departure of the servant from the usual place of employment must not amount to an abandonment of employment, or be an act wholly foreign to his usual work; it must be really an innocent or inconsequential departure from the line or place of duty.”

In this case the employee by his own act, in utter disregard of the rights of others and against the warning of his friends, broke the continuity of his employment and became a trespasser during the time that he was cleaning the revolver, playing with it, exhibiting it and trying it to determine whether or not it was loaded.

The evidence does not present a case in which the claimant is entitled to compensation.

And now, to wit, July 30, 1928, the exceptions to the decision of the Workmen’s Compensation Board are overruled, the findings of the board are affirmed and the appeal is dismissed.


author: Henderson, J.,

text:
    French’s Estate.

      Clement, Donahue & Irwin, for exceptions; Edgar S. MeKaig, contra.
    Nov. 30, 1928.
   Henderson, J.,

A careful examination of the record and of the brief in support of the exceptions discloses no error. The Auditing Judge has correctly interpreted the clauses in the will and applied the rules of law applicable thereto. The exceptions are dismissed and the adjudication is confirmed absolutely.


author: Kent, P. J.,

text:
    Strang v. Strang.

      W. J. Sirdevan, for libellant; no appearance for respondent.
    May 7, 1928.
   Kent, P. J.,

This is a libel, a vinculo matrimonii, filed by Mae Strang against Denzil Strang. The master has recommended that the prayer of the petitioner be granted, and that a decree of divorce be entered, by his report filed, from which, however, after a thorough examination of the law and the facts involved, we are compelled to differ. The fundamental legal requisites to sustain jurisdiction in this case have not all been complied with. The libellant’s ground of procedure against her husband is based on wilful and malicious desertion, predicated essentially on the fact, as shown by testimony offered, of her having been compelled to leave him, not because of any abuse of such a character as endangered her life or rendered her condition intolerable and life burdensome, and thereby justifying her withdrawal from his home.

The libellant testifies that she was married to the respondent on July 13, 1921, and that thereafter they lived together as husband and wife in his home at Pleasantville, Pa., situate on State Street, until about June 1, 1923, at which time libellant left him on account of his treatment and his failure to provide libellant with food and clothing, or food and clothing for her young children who were living with them, and whom respondent had promised, before marriage, that he would make a home for. And, further, that the respondent was mean and cross most of the time, that he would slam doors and shove furniture around in a rage, and take his anger out on her and the children; that about every time the little four-year-old boy went to the table he would whip him severely, and when libellant tried to interfere he threatened to do the same thing to her if “she didn’t look out,” and that he frequently told her to take her brats and get out of there.

The libellant testifies further: “It got so that I could not stand his abuse and neglect any longer. My health was run down. I had run down from 120 pounds, which I weighed when I married him, to 100 pounds the time I left. I told him I could not stand it any longer unless he would treat me better and provide for me in a decent manner, and then he told me to get out. That was the day before I left him, and he told me to get out again the next day. My boy, Albert, was there, and he told Albert to get his (the respondent’s) car and take me and the children out of his house and not come back. I never did go back and have never lived or cohabited with respondent since the first part of June, 1923. ... I did all I could to get along with him, but I would not stand it any longer, and was going to leave if he had not ordered me out when I asked him to treat me decently. I am forty-three (43) years old and my husband is now seventy-five (75) years old.”

Considering the testimony as a whole, there appears to be an attempt to establish constructive desertion on the part of the respondent for the three following reason, viz.: (a) Because of respondent’s refusal to provide food and clothing for herself and children; (b) because of respondent’s cruel treatment to libellant; (c) the turning of libellant out-of-doors by the respondent.

It seems to be a well-settled rule of law that a divorce can only be granted for the specific reason alleged in the libel, and, of course, only where that cause is clearly established by the testimony, some courts holding that where a libel in divorce charges desertion, it is improper for the master to permit evidence of cruel and barbarous treatment, as the court could not consider a charge not pleaded; moreover, it would be unjust to the respondent, in that he would have no notice that he would have to meet this testimony at a hearing: Adamson v. Adamson, 71 Pitts. L. J. 384.

In the instant case the cause given is the wilful and malicious desertion of the libellant by respondent on or about June 1, 1923, the libel being devoid of any suggestion of constructive desertion on the part of the respondent, because of his failure to provide for his wife and her children, his cruel treatment of her or the turning of respondent out-of-doors or away from his home.

It is equally well established that the wife is entitled to an absolute divorce from her husband on the ground of desertion, even though she, as a matter of fact, left their common habitation, if his conduct was so cruel toward her that she could not live with him in safety to her health or without peril to her life, and for such reasons she left him and abandoned his home: Johnson v. Johnson, 27 Dist. R. 1014.

Before the libellant would be entitled to a decree or the court warranted in holding that there was a constructive desertion on the part of the respondent, it must clearly appear from the testimony that the causes relied upon amount to a justification of the wife’s withdrawal from the home of the respondent and are such as would entitle her to a divorce. Considering the reasons hereinbefore mentioned in their order, (a) respondent’s refusal to provide food and clothing for herself and children, this, of itself, is not a sufficient cause for the granting of an absolute divorce in Pennsylvania, the libellant having the benefit of the statutory provision to compel her husband to provide for her support and maintenance. Therefore, the court can only consider this evidence in connection with the other testimony in the case.

Relative to the second reason, (b) respondent’s cruel treatment of libellant, the libellant testifies that he was mean and cross most of the time; that he would slam doors and shove furniture around in a rage, and take his anger out on her and the children; that he would whip the young boy severely and would threaten to do the same to libellant when she interfered; that she told him she could not stand it any longer unless he would “treat us better and provide for me in a decent manner, and then he told me to get out;” and that she, the libellant could not “stand it any longer and was going to leave if he had not ordered me out when I asked him to treat me decently.” This, in the opinion of the court, does not show such a state of facts as would justify the libellant in leaving the respondent’s home because of cruel and barbarous treatment endangering life, or such indignities to her person as to render her condition intolerable or life burdensome; and more particularly so in view of the fact that she clearly testifies that she “was going to leave him if he had not ordered me out when I asked him to treat me decently.” Libellant or her witness do not testify to any particular or specific instances of cruel or barbarous treatment or indignities to the person, but only in a general way that respondent was abusive and neglectful, which, in the opinion of the court, falls far short of the measure required to warrant her withdrawal with the effect of converting it into a desertion of her by her husband.

In regard to the third reason, (o) the turning of respondent out-of-doors by direct command on two different occasions as well as his abusive treatment and neglect. Considering all of the testimony together, we are clearly of the opinion that there was no such conduct or action on the part of the husband as would compel her to leave, and that the turning out-of-doors, as established by the testimony in this case, fails to show that same was either actual by violence or constructive by threats.

Within the rule laid down in Sowers’s Appeal, 89 Pa. 173, it is held: “A divorce a mensa et thoro will not be granted on the suit of the wife on the ground that she was turned out-of-doors, when it is not shown that she was ejected by force, or was compelled to leave because of a threat to employ it, and a reasonable apprehension that it would be used against her; or a refusal to receive her upon demand that she should be taken into her husband’s house as a wife; or an emphatic refusal to allow her to remain after she had returned, accompanied by the declaration that she wished to remain and conduct herself as a wife should do; or, lastly, where the facts do not show a justification on the part of the wife in withdrawing from the house of her husband.”

And, also, as stated by Judge Henderson when he says:

“It does not appear who held the lease of the house, but there is an entire lack of evidence that the appellant was subjected to any compulsion which requried him to leave:” Magee v. Magee, 71 Pa. Superior Ct. 594.

“Where the wife, the libellant, attempts to show desertion by testimony that her husband turned her out-of-doors, and that, therefore, the separation was a desertion by him, and the only testimony elicited is by libellant, that they quarreled one night and respondent told her to pack her clothes and go home, and that the next morning she left and went to her sister’s home, which testimony was obtained by leading questions, lacked corroboration and was contradicted by other of her statements, a divorce will not be granted, but a rehearing will be allowed.

“A turning out-of-doors, in order to constitute desertion, must be either actual by violence, or constructive by threats. Merely an impatient utterance of the husband, made in the excitement of a passing quarrel, cannot be accepted by the wife as a deliberate and irrevocable command to be gone, nor, when acted upon by her in cold blood, thereafter set up by her as a turning out-of-doors:” Border v. Border, 21 Dist. R. 749.

“The causes which operate upon the wife, and force her to withdraw herself from her husband’s house and family, must be such as would entitle her to a divorce.

“The act of assembly specifies two causes of divorce for ill-treatment: (a) When the husband has, by cruel and barbarous treatment, endangered his wife’s life; or (b) offered such indignities to her person as to render her condition intolerable and life burdensome. . . . This defense, if sustained at all, must be for the first of the causes above mentioned. Indeed, this is the cause specified in the answer of respondent, though in doing so she has blended the two causes together by saying that she was ‘compelled to absent herself from his habitation by libellant’s cruel and barbarous treatment, rendering her condition intolerable and life burdensome.’ But to entitle her to a divorce for cruel and barbarous treatment, it is well settled that there must be actual personal violence or the reasonable apprehension of it, or such a course of treatment as endangers life or health and renders cohabitation unsafe: May v. May, 62 Pa. 206; Gordon v. Gordon, 48 Pa. 226; Butler v. Butler, 1 Pars. 329:” Detrick’s Appeal, 117 Pa. 452.

Considering the testimony as a whole, in our opinion, it fails to show such Justification and turning out-of-doors, either actual by violence or constructive by threats, within the rule as laid down in the decisions above cited as would constitute a constructive desertion on the part of the respondent. She was not compelled by force or threats to leave, and the evidence of ill-usage falls far short of the measure required to warrant her withdrawal with the effect of converting it into a desertion of her by her husband. Wherefore, we cannot agree with the learned master in his recommendation that a decree be entered. We are of the opinion that the prayer of the petitioner should be refused.

Order. — Now, May 7, 1928, the prayer of the petitioner is refused and the libel dismissed.

From J. Perry Eckels, Meadville, Pa.


author: Houck, J.,

text:
    Krischunas v. Philadelphia & Reading Coal and Iron Co.

      Boyer Dever, for plaintiff; John F. Whalen and Georye Ellis, for defendant.
    July 23, 1928.
   Houck, J.,

The claimant in this case is the dependent widow of Peter Krischunas, who died Oct. 4,1927, as a result of burns sustained in a gas explosion in the Gilberton colliery of the defendant company occurring Sept. 19, 1927. The referee awarded compensation, which award was affirmed by the Compensation Board, hence the appeal to this court. The case hinges entirely on the cause of the explosion. The defendant contends that the explosion was caused by the decedent in an act constituting violation of law.

The decedent and a fellow-employee, Frank Baranick, were employed as miners. Early in the morning of Sept. 19', 1927, the fire boss inspected the working place and found no gas present. Baranick also tested the place for gas with a safety-lamp and found none. The section was gaseous and no open lights were allowed in it. The two men went into the working place equipped with proper lights and the gas exploded. According to the testimony of Baranick, neither of the two men had an open light and neither of them was smoking. After the explosion, an investigation was made and a box of unburned matches was found close to the place where the explosion occurred. No matches which had been burned were found. A package of cigarettes was found about eighty feet from the point of the explosion. A cap, with the top of a battery lamp on it, was also found. It was not established who owned the matches, cigarettes or cap. Neither was the cause of the explosion established. Baranick testified that the matches were not his, and, from this fact, the defendant seeks to have the inference drawn that the matches necessarily belonged to the decedent. However, other men were in the place on the morning of the explosion, and just how many men may have been there or passed through is not known.

The defendant contends that the decedent violated Rules 9, 10 and 25 of the Anthracite Mine Law of June 2, 1891, P. L. 176. The pertinent portions of these rules are as follows: “Rule 9. In every working approaching any place where there is likely to be an accumulation of explosive gases, or in any working in which danger is imminent from explosive gases, no light or fire other than a locked safety-lamp shall be allowed or used. Rule 10. No. lucifer matches or any other apparatus for striking a light shall be taken into said mine or parts thereof.” Rule 25 makes it an offense to “enter a place in or about a mine against caution, or carry fire, open lights or matches in places where safety-lamps are used.” Article 17, section 4, of the law of 1891 makes offenses under the act misdemeanors. Consequently, if the decedent violated any of these rules, his dependents would not be entitled to compensation: Mizzer v. Phila. & Reading Coal and Iron Co., 289 Pa. 73. The question to be determined is whether the defendant established the fact that the decedent violated any of these rules.

As we have already said, the cause of the explosion was not established by direct evidence. One of the defendant’s witnesses testified that he did not know what caused the explosion. Therefore, in order to defeat the right to compensation, it must be inferred from the circumstances that the matches found belonged to the decedent and that he took them into the working place which was a gaseous section where no open lights or matches were allowed. The drawing of this inference was for the compensation authorities and not for the court: Labuck v. Mill Creek Coal Co., 292 Pa. 284. “They [the requisite facts] must be established either by direct evidence or by inference from proven circumstances if the employer wishes to succeed in his case. Whether the evidence was sufficient from which to find the fact, and whether the fact should b’e ultimately found, was a question for determination by the board: ” Id. The Supreme Court also points out that while it is not its intention to hold the defendant in compensation cases to the strict measure of proof demanded in a criminal case, the evidence to refute the claim should at least approximate that required in criminal cases. It was a question for the referee and the board to determine whether the evidence in this case warranted the inference on which the defendant necessarily relies. All of the referee’s findings of fact which were affirmed by the Compensation Board are supported by competent proof, and we find no error in the award.

The defendant’s exceptions are dismissed, the award is affirmed and judgment is entered for the claimant in the sum of $5755.

And now, July 23, 1928, an exception is allowed the defendant and bill is sealed.

Prom M. M. Burke, Shenandoah, Pa.


author: Schaeffer, P. J.,

text:
    Deppen Manuf. Co., Inc., v. Penna. Alcohol Permit Board.

      Bushong & Craumer, for appellant.

      Wilhelm F. Knuuer, Special Deputy Attorney-General, and Thomas J. Baldrige, Attorney-General, for Commonwealth.
    Jan. 21, 1928.
   Schaeffer, P. J.,

This is an appeal by the Deppen Manufacturing Company, Inc., hereinafter termed the Company, from the order of the Pennsylvania Alcohol Permit Board, hereinafter termed the Board, declaring forfeited a certain bond filed with the Board by the Company.

In pursuance of an application by the Company, accompanied by a bond in the sum of $10,000, in which the. Company was the principal and the Massachusetts Bonding and Insurance Company the surety, the Board, as of Jan. 1, 1927, granted a permit to the Company authorizing the permittee “to manufacture, produce, etc., alcohol or alcoholic liquid produced in the process of operating a brewery or cereal beverage plant, all in full accordance with the laws and regulations of the United States and the Commonwealth of Pennsylvania, in pursuance of the terms of the Act of Feb. 19, 1926, P. L. 16.”

On April 21, 1927, the Board issued an order or citation addressed to the Company to show cause why the permit should not be revoked on account of alleged violations of law. Two hearings were held and testimony taken. On July 6, 1927, the Board filed a report setting forth certain violations by the permittee and issued an order “revoking and canceling the said permit and forfeiting the bond, etc.”

The Company then presented its petition to this court, praying that the decision of the Board be reversed “so far as it attempts to forfeit the bond above mentioned,” upon the ground that the Board had no authority to forfeit said bond, and that the only amounts collectible under said bond are such amounts as are duly adjudged to be due from the permittee by the decree of a competent tribunal, and that no such decree exists.

To this petition the Board has filed an answer averring that the bond had been given in pursuance of the Act of Feb. 19,1926, P. L. 16; that the permit had been revoked by the Board, after due notice and hearing, for violations of law, and that thereupon, under the provisions of the bond, the principal sum thereof, to wit, $10,000, became due and payable.

It will be seen that the Company does not appeal from or attack the order of the Board revoking the permit; the complaint relates to the action upon the bond and is two-fold: (1) That the Board is not a competent tribunal to declare the bond forfeited; and (2) that, even if the bond be duly forfeited, the principal sum thereof is not due and payable or collectible.

The Company does not, in this proceeding, allege that an attempt is being made at this time to recover the principal sum, or any portion thereof, of said bond from either the principal or the surety therein. The amount of money that may be due or collectible under said bond is not, therefore, before us at this time. The only remaining matter is the alleged action by the Board declaring the bond forfeited.

Section 8 of the Act of Feb. 19, 1926, P. L. 16, which created the Alcohol Permit Board, provides for the furnishing of a bond, upon the filing of the application for a permit, “in the penal sum of ten thousand dollars, with surety to be approved by the Board, which bond shall be conditioned for'the faithful observance of all the laws of this Commonwealth relating to the manufacture, sale, etc., of intoxicating liquors and the conditions of the permit.”

The 13th section of the Act of Feb. 19, 1926, P. L. 16, authorizes the Board, upon learning of any violation, to cite the permittee to appear and show cause why the permit should not be revoked. “And, upon such hearing, if satisfied that any such violation has occurred, the board shall immediately revoke such permit, notifying the permittee thereof by registered letter. Any permittee aggrieved by any decision of the board may file, within 30 days thereafter, in the court of common pleas of the county in which the permittee is resident, a petition against the board as defendant, alleging therein the action and decision complained of and praying for a reversal thereof.”

By what decision of the Board is this permittee aggrieved? It does not complain of the action by the Board revoking its permit; nor does it complain of any present attempt to collect the principal of the bond or any part thereof. The complaint is against the alleged forfeiture of the bond by the Board. That is not such definitive action by the Board from which an appeal will lie. The declaration by the Board that the bond is forfeited constitutes no legal grievance sustained by the obligors; the latter are not thereby deprived of any right to contest the collection of the principal, or any lesser sum under the bond in a court of law. The order of the Board declaring the forfeiture is rather an interlocutory order which by the very terms of the bond should precede an attempt to collect upon the bond. Annexed to the body of the bond is the following stipulation: “And in the event of the foregoing bond being forfeited, we do hereby empower the Attorney-General, etc., to appear for us, and . . . confess judgment against us.” Accordingly, the parties themselves have agreed that a declaration of forfeiture by some one on behalf of the Commonwealth should be made before action upon the bond is taken in or before any court; it is upon the forfeiture of the bond that the warrant to confess judgment becomes effective. Whether the declaration of forfeiture by the Board has any legal effect or not, beyond the establishment of a basis for the entry of judgment in pursuance of the power of attorney contained in the bond, it is not necessary for us to decide. We are clear that the declaration of forfeiture complained of has not aggrieved the obligors, that their liability and the extent thereof under the bond can be litigated and determined after suit or judgment by confession has been entered in this or any other court of record, and the action of the Board thus far, with reference to the bond, affords no ground to the obligors to appeal to this court.

And now, to wit, Jan. 21, 1928, this appeal is dismissed, at the cost of the Deppen Manufacturing Company, Inc., without prejudice to the right of said Company, as principal, or the Massachusetts Bonding and Insurance Company, as surety, to contest the liability of them, or either of them, or the extent thereof, upon any action now brought or hereafter to be brought upon said bond or obligation.

Prom Charles K. Derr. Reading, Pa.