author: Swearingen, J.,

text:
    Chester Franzell & Co. v. Atlantic Coast Line Railroad Co.

      Horton Smith, for plaintiff.

      Dalzell, Dalzell & McFall, for defendant.

      Reed, Smith, Shaw & McClay, for garnishee.
    Nov. 6, 1929.
   Swearingen, J.,

— Feb. 18, 1929, the plaintiffs began this case by praecipe for “writ of foreign attachment in assumpsit,” and directed the summoning of the Pennsylvania Railroad Company as garnishee. In response to a rule issued by the garnishee, the plaintiffs filed their affidavit of cause of action, in which they averred, inter alia, that the plaintiffs have their business in Pittsburgh, Pa.; that the defendant is a foreign corporation; that July 9, 1926, R. H. Holstein delivered to the Atlantic Coast Line Railroad Company at Martell, Florida, a carload of watermelons in good and marketable condition fit for transportation and consigned the same to the plaintiffs at Pittsburgh, Pa.; that the Atlantic Coast Line Railroad Company accepted and transported the shipment over its lines to Richmond, Virginia; that the defendant, in violation of its duties as a common carrier, “did so roughly, carelessly and negligently handle said shipment that upon delivery thereof to the plaintiffs at its destination the lading was in a badly shifted condition, melons bruised and broken and in a deteriorated condition, rendering a portion of the shipment entirely worthless and materially diminishing the market value of the balance,” and that the market value of the watermelons on July 16, 1926, had declined 5 cents a melon from the market day previous, “due to the negligence and delay of the defendant,” and the plaintiffs were compelled to dispose of the same at a loss of $50 from the market day previous, at which time the melons should have arrived in Pittsburgh.

Oct. 5, 1929, the garnishee filed its petition, in which it averred that the affidavit of cause of action did not set forth a good cause of action against the principal defendant, and it specified:

(a) That the affidavit did not aver that the defendant has property within the jurisdiction of this court.

(b) That no facts are set forth in said affidavit whereby the damages can be computed.

(e) Part of the damages claimed are alleged to be due to delay, yet the affidtvit does not allege that defendant did not handle the shipment with reasonable dispatch.

(d) The affidavit of cause of action shows that the suit is founded on negligence, which sounds in tort, and there is no allegation that the tort was committed within the Commonwealth of Pennsylvania.

No answer to the petition was filed by the plaintiffs.

We are of opinion the plaintiffs’ affidavit of cause of action fails to state a good cause. There is no averment that defendant is the owner of any property within the jurisdiction of this court; therefore, there is no subject upon which a foreign attachment can be founded. Neither are there distinct, unambiguous allegations of what damages the plaintiffs sustained — whether they were due to delay or to negligence in handling the goods.

Undoubtedly, the cause of action stated sounds in tort. Long prior to the Act of June 21, 1911, P. L. 1097, it was held that foreign attachment could only be maintained in cases ex contractu, and that if the action was really ex delicto, the tort could not be waived: Wood v. Virginia Hot Springs Co., 202 Pa. 40. Then the amending Act of 1911 permitted certain actions to be commenced by foreign attachment when, and only when, the “tort was committed within this Commonwealth.”

There is no allegation in the plaintiffs’ affidavit of cause of action as to where this tort was committed — certainly none that it was committed within this Commonwealth. Consequently, we have no jurisdiction of this cause, and the motion of the garnishee to dissolve the attachment must be granted.

Order.- — -And now, to wit, Nov. 6, 1929, after argument and upon consideration, the motion to dissolve the foreign attachment, ex parte garnishee, is granted.

From William J. Aiken, Pittsburgh, Pa.


source: Caselaw Access Project

author: MacDade, J.,

license: Public Domain

text:
    Douglas et ux. v. Clarke.

      Frank M. Hunter, for plaintiffs; Clarence G. Myers, for defendant.
    Nov. 1, 1929.
   MacDade, J.,

— The plaintiffs have instituted a suit in equity and had the same marked as a case lis pendens against the defendants, setting up, inter alia, that they own certain premises in the Borough of Swarthmore, upon which, facing toward Chester Road and running near or along the northwest boundary of said premises (lot), is located a three-story, fifteen-room dwelling-house, modern in design and of tile and stucco construetion, in which plaintiffs reside. That to the rear of said dwelling and on the premises aforesaid is a private garage and near the northwest corner is a spring-house. To the southwest of said dwelling, lying between said dwelling and said Swarthmore Avenue and located on said premises, is an artificial lake or pond constructed and maintained by said plaintiffs for the beautification of their premises and for the assthetic pleasure of the plaintiffs and their families and guests. The remaining portion of said premises is improved and beautified by a private curving driveway, a lawn, shrubs, trees, vines and other ornamental growth and foliage. The premises are enclosed on its Chester Road and Swarthmore Avenue frontages with a privet hedge. The said lake or pond is about 85 feet long, 45 feet wide and 2i feet deep at the breast of the dam. Plaintiffs’ land surrounding said lake or pond slopes downward on all sides toward it, said Swarthmore Avenue distant from said lake about 20 feet, being approximately 4 feet above the level of the water of said lake or pond at the breast of the dam. Said lake or pond is fed by a rivulet or small and narrow open watercourse, which crosses under Swarthmore Avenue and enters near the northwest corner of plaintiffs’ premises. The said lake or pond has an outlet, thus precluding stagnation of its water.

All of the premises and. all improvements and things thereon, as herein-before set forth, are at all times maintained in a cut, trimmed and otherwise well-kept condition, and constitute to plaintiffs, their family and guests, a dwelling-place conducive at all times to comfort, repose, beauty and enjoyment.

The present market value of plaintiffs’ premises, with the improvements thereon, is in excess of $45,000.

Defendant, William A. Clarke, is the owner of a large tract of land, containing in excess of eleven acres, abutting on its northerly side on Baltimore Avenue, otherwise known as Baltimore Pike; on its northwesterly side on Cedar Lane; on its southwesterly side on Swarthmore Avenue, and its southeasterly side on the rear or northwest boundary-line of plaintiffs’ land and the northwest boundary-line of other properties northeast of plaintiffs’ residence running along the northwest side of Chester Road.

The defendant’s said tract has been recently annexed to the Borough of Swarthmore.

Prior to defendant’s activities hereinafter stated, defendant’s entire tract was vacant and unimproved, and by reason of its natural topographic and other conditions, much of rain or other surface-water coming thereon was absorbed by defendant’s ground. A material portion of such surface-water not so absorbed drained on to properties other than plaintiffs’ property abutting the southeast side of defendant’s land. Also, a road-drain led into defendant’s land from Baltimore Avenue near the line of Sproul Road projected, discharged its water on defendant’s land upwards of 1000 feet distant from the nearest point of plaintiffs’ said premises, and the water thus discharged on defendant’s land was either absorbed thereon or drained into properties other than that of your complainants.

The entire suface and other drainage-water naturally received by plaintiffs’ said premises was small in quantity, distributed over its entire boundary-line and insufficient in volume to create inconvenience, discomfort or interruption in the full enjoyment of plaintiffs’ said premises or adversely affect the market value thereof.

On or about April 10, 1928, a plan was prepared, laying out and dividing the said tract of land into about thirty-four parcels of lots and providing for a system of streets of extensive area running through said land, with openings on to said Baltimore Avenue, on Cedar Lane and at or near the intersection of Swarthmore Avenue and Cedar Lane. Said plan is not recorded, but a substantially true and correct sketch thereof is attached to plaintiffs’ bill of complaint.

On or about May 1, 1929, defendant, through his agents, employees and contractors, began development of said tract of land according to said plan, including laying out, grading and curbing of the hereinbefore referred to system of streets, and side streets are now graded and curbed, and defendant is proposing to complete the same with modern street pavement. Three dwelling-houses are in course of construction on said tract and plaintiffs believe that many more dwelling-houses are proposed to be constructed on said tract of land.

On or about May 1, 1929, aforesaid, defendant, through his agents, employees and contractors, began construction of a sewer system for the drainage of storm, surface, drain, roof and other water from the said streets, lots and houses located and to be located in defendant’s said tract of land. The said sewers have been constructed in the bed of said new streets with inlets leading into said sewers and located in the gutter or beds of said streets at defined locations.

All of such sewers lead into a main or trunk sewer of a diameter of approximately thirty inches.

In the progress of the development of said tract, defendant, through his officers, agents and employees, graded or otherwise changed the natural and immediately pre-existing topography and condition of said land by embanking, raising or elevating the land adjacent to certain portions of its southwesterly boundary-line to the northeast of plaintiffs’ land, thereby diverting large quantities of water which theretofore from time to time naturally flowed from defendant’s land to said abutting properties fronting on Chester Road and northeast of the plaintiffs’ land into the streets, gutter and sewers hereinbefore mentioned.

On or shortly prior to May 14, 1929, defendant, through his agents, employees and contractors, began the laying of said thirty-inch main or trunk sewer along the line of Swarthmore Avenue and within the southwest boundary-line of defendant’s said tract and extending in a southeasterly direction toward the northwesterly comer of plaintiffs’ said land, with the obvious purpose and intent of discharging the entire flow of said sewer system into a small rivulet or watercourse running into plaintiffs’ lake or pond hereinaforementioned. Plaintiffs notified defendant to cease and desist from any such construction, purpose and intent by a written communication addressed to Clarke and Harvey, Inc., dated May 14, 1929, and duly received by defendant. A true and correct copy of said letter is attached to the said bill of complaint.

After receipt by defendant of the notice, defendant ceased and desisted from the proposed construction of the said sewer to said rivulet or watercourse, but, after an interval of several weeks, to wit, in the latter part of June or the early part of July, 1929, the exact date to the plaintiffs being unknown, defendant, through his agents, employees and contractors, began the construction of a terminal pit, chamber or vault and to connect or lead the said thirty-inch main sewer thereinto, so as to discharge the entire content of said drainage, surface, storm and roof-water system into said terminal pit, chamber or vault.

Said terminal pit, chamber or vault is approximately 4 feet long, 5 feet wide and 8 feet deep. Its bottom and sides are of brick and cement or other hard, solid and lasting construction, and no outlet pipe leads therefrom. Said pit, chamber or vault is located on defendant’s said tract of land abutting the northeast side of Swarthmore Avenue and distant approximately 150 feet from plaintiffs’ said premises. Said pit, chamber or vault has a solid iron or other metal covering on the top thereof. The only opening in said terminal pit, chamber or vault for the discharge of the water emptied therein is an opening running along the entire length of the vault fronting on Swarthmore Avenue, and said opening is elevated above the level of Swarthmore Avenue and is so designed, arranged and constructed that the entire discharge of water from said terminal pit, chamber or vault will be directed on to the roadway surface of said Swarthmore Avenue.

Said Swarthmore Avenue, from the place where the water from said terminal pit, chamber or vault will be discharged on it, slopes downward toward plaintiffs’ said premises. Said Swarthmore Avenue has no storm or surface-water or other water-drainage sewers in or along the portion of said highway between said point of discharge from said terminal pit, chamber or vault and the intersection of said Swarthmore Avenue with said Chester Road. The grade, location and construction of said Swarthmore Avenue is such that all or the greater portion of the water discharged from said pit, chamber or vault ■will flow on or along said Swarthmore Avenue and thence into, on and over plaintiffs’ said premises.

By reason of the design, character, size, location, construction, operation and function of defendant’s said sewer system, including said terminal pit, chamber or vault, surface, storm, street, roof drainage and other waters falling or otherwise coming on to said defendant’s said entire tract will be collected at one point, to wit, the said terminal pit, chamber or vault, and discharged in vast quantities, frequent in recurrence, on said Swarthmore Avenue and thence into, on and over plaintiffs’ hereinbefore-described premises. Also, by reason thereof, large quantities of sand, dirt, gravel and debris .will be washed on to plaintiffs’ said premises.

All of the said streets, gutters, sewers and the said terminal pit, chamber or vault are laid out, located, constructed on, owned by and at the expense of said defendant and on defendant’s said tract of land.

The discharge of such water from said defendant’s sewer system on to plaintiffs’ said premises, as hereinbefore averred, will be repeated, recurring and continuing and will occasion and cause great, recurrent and irreparable injury, damage and destruction to plaintiffs’ said premises, and injury, interruption, interference, damage and destruction to, of and with plaintiffs’ use and enjoyment of the said premises and greatly diminish the market value of the said premises.

While said terminal pit, chamber or vault was under construction and when defendant’s purpose and intent to plaintiffs first became apparent, to wit, in the latter part of June or the early part of July, plaintiffs orally notified defendant of the injury, damage and destruction to plaintiffs’ said premises necessarily consequent upon defendant’s said proposed construction, and notified defendant to cease and desist therefrom, but thereafter, notwithstanding said notice of plaintiffs, defendant proceeded with the proposed construction of said terminal pit, chamber or vault with the purpose and intent to discharge such water on to said Swarthmore Avenue and thence on to plaintiffs’ said premises, as hereinbefore more particularly described.

On or about June 17,1929, defendant, through his employees, agents or contractors, dug and now maintains an open ditch through a portion of defendant’s premises leading in a southerly direction to a point at or near the boundary-line of defendant’s property and laid out on such a slope that great quantities of water from defendant’s premises are recurrently gathered in said ditch and recurrently discharged with mud and debris on plaintiffs’ said premises and to the damage, injury and destruction of the use, comfort and enjoyment of such premises.

The prayers are:

1. That defendant, his agents, employees, contractors and any and all persons, firms, associations or corporations hereafter purchasing lots or parcels of land in defendant’s said tract or purchasing all of said tract be severally enjoined, commanded and restrained from gathering and collecting, or permitting to be gathered and collected, any surface, storm, roof, drain or other water falling or coming on to said tract of land, or any portion thereof, and discharging it, either directly, either through the ditch in paragraph 18 of this bill described or discharging it in any other wise, in, on, upon or over plaintiffs’ said premises, or at any other place or location, in such manner that the same will flow over the surface of the ground or other place, into, on to or over plaintiffs’ said land.

2. That defendant, his agents, employees, contractors and any and all persons, firms, associations or colorations hereafter purchasing lots or parcels of land in defendant’s said tract, or purchasing all of said tract, be severally enjoined, commanded and restrained from causing and permitting surface, storm, roof, drain and other water falling or coming on to said land and gathered and collected in said terminal pit, chamber or vault from being discharged out of said pit, chamber or vault on to the surface of Swarthmore Avenue or on the surface of land adjacent thereto, so as to flow on, upon, into or over plaintiffs’ said premises.

3. That defendant, his agents, employees, contractors and any and all persons, firms, associations or corporations purchasing lots or parcels of land in defendant’s said tract, or purchasing all of said tract, be severally enjoined, commanded and restrained from causing or permitting surface, storm, roof or other water falling or coming on to said land to be discharged, emptied, collected or gathered, either directly or indirectly, into said terminal pit, chamber or vault until adequate and sufficient measures have been constructed, installed or completed to carry off the water so discharged, emptied, collected and gathered in such a manner as to insure against its flowing or coming in, upon or on plaintiffs’ said premises.

3. That a mandatory injunction be granted upon final hearing demanding defendant to take away and remove the said ditch as well as change the arrangement, design, construction and outlet of said terminal pit, chamber or vault, and otherwise to correct, make, furnish and supply adequate means to insure against the surface, storm, roof and drain-water on defendant’s said tract from flowing on to plaintiffs’ premises.

4. That such other equitable relief be granted as to- your Honorable Court will seem meet and proper, including compensation for any and all damages by complainant sustained.

To this bill of complaint the defendant has filed an answer, setting forth preliminary objections as follows:

“1. It appears from a reading of plaintiffs’ entire bill and the attached exhibits that the basis of their complaint is that the defendant, in laying out streets through his tract of ground on a hill or slope above plaintiffs’ ground, grading his lots to drain into said streets and installing a storm sewer or drain from said streets to a public highway of the Borough of Swarthmore which abuts both plaintiffs’ and defendant’s property, has caused an increased flow of surface-water on to said public highway, along which it naturally flows, down to a point opposite plaintiffs’ property, where it enters existing drains (not constructed by the defendant) leading off said highway into a small creek or watercourse crossing plaintiffs’ property.

“2. The plaintiffs are seeking equitable relief from the natural consequences of owning land at the foot of a hill or slope through which flows a creek or watercourse forming the natural outlet of storm and surface-water of the said hillside and adjoining land.

“3. The bill amounts to a complaint that defendant has improved his formerly vacant and unimproved land, which has recently been annexed to the Borough of Swarthmore.

“4. It appears from paragraph 12 and succeeding paragraphs of plaintiffs’ bill that defendant has merely drained the surface-water naturally flowing upon or across his land into newly-opened streets, from which it is conducted by a drain to the roadbed of Swarthmore Avenue, a public highway, at a point 150 feet or more distant from plaintiffs’ property.

“5. It appears from paragraph 13 and succeeding paragraphs of plaintiffs’ bill that the flow of surface-water into the creek or watercourse on the plaintiffs’ premises is due to the natural slope or grade of Swarthmore Avenue and the absence of adequate gutters or curbs on Swarthmore Avenue, for which conditions defendant is in no way chargeable.

“6. It appears from the averments of paragraphs 2, 10, 11 and Exhibit ‘B’ of plaintiffs’ bill that plaintiffs’ property is a servient tenement situated at the bottom of a natural slope or drainage area, and that a natural creek, rivulet or watercourse has for an indeterminate time flowed through and across plaintiffs’ property, carrying away storm-water from said drainage area, including defendant’s property, higher up on the hillside.

“7. It appears that defendant, in common with other owners of land located above defendant’s land, has an easement for the flow of storm and surface-water across plaintiffs’ property.

“8. Plaintiffs’ bill does not aver that defendant has unduly, unreasonably or improperly increased the flow of surface-water ultimately reaching the creek or watercourse on plaintiffs’ premises.

“9. Plaintiffs’ bill does not aver that defendant’s improvements have been constructed in a careless or negligent way or that same are in any respect improper or unreasonable under the circumstances set forth.

“10. It appears from the bill that there are no public storm sewers or other means of taking care of the surface, stream, roof, drain or other waters falling or coming on to defendant’s tract of land other than the natural down-hill flow from defendant’s street to Swarthmore Avenue to the creek on plaintiffs’ property at the foot of the-hill.

“11. Plaintiffs’ bill does not aver that defendant could have constructed his said surface-drainage system, including the covered terminal pit or vault at the curb-line of Swarthmore Avenue, 150 feet above plaintiffs’ property-line, in any other or more appropriate manner than he has done or could dispose of his natural surface-water in any other manner, there being no municipal or other storm sewers to discharge into.

“12. It appears from plaintiffs’ entire bill that defendant has merely taken the customary and usual steps of a property owner in developing his land for urban purposes and in the orderly disposition of storm and surface-water.

“13. It appears that the ditch complained of in paragraph 18 of plaintiffs bill was merely a temporary expedient, and defendant’s comprehensive plan contemplates the effective drainage of his lots into the abutting streets and public highways, as elsewhere averred in the bill.

“14. The plaintiffs seek, in paragraphs 1, 2 and 3 of their bill, the total cessation of all flow of surface-water on to plaintiffs’ property, although plaintiffs admit in the last part of paragraph 5 and in Exhibit ‘B’ of their said bill that their land has always received surface-water from defendant’s tract. The said admission in Exhibit ‘B’ is as follows: ‘. . . In the past our property has received some water from your field, but under present conditions the flow you are arranging to direct over our property cannot be taken care of without considerable damage.’

“15. The plaintiffs seek in the 4th paragraph of the prayer of their bill (inadvertently numbered 3) to fasten upon the defendant the liability of an insurer ‘against the surface storm, roof and drain-water on defendant’s tract from flowing on to plaintiffs’ said premises.’

“16. The plaintiffs’ difficulties arise from the insufficient size of the outlet pipe (sixteen inches, according to letter of James B. Douglas attached as Exhibit ‘B’ of the bill) installed on their premises in connection with the artificial dam and lake improvements constructed by them in the bed of a natural watercourse across their property.

“17. The damage anticipated by the plaintiffs is not to their land, but to certain artificial improvements constructed by them in and about a lake or pond formed by damming up the creek or watercourse flowing through their said premises and installing a sixteen-inch outlet therefor.

“18. The damage anticipated by the plaintiffs results from the topography of the neighborhood, the fact that Swarthmore Avenue, down which the storm-water will flow, is elevated four feet above plaintiffs’ artificial lake or pond, is uncurbed and that old drains lead therefrom into the watercourse on plaintiffs’ property. It is not alleged defendant caused or is in any way responsible for this situation.

“19. It does not appear that plaintiffs have taken any steps to lawfully protect their property from the flow of surface-water or prevent the overflow of surface-water from the roadbed of Swarthmore Avenue, which at present is uncurbed opposite plaintiffs’ property.

“20. It is apparent that the relief sought by the plaintiffs cannot be granted without working irreparable injury and disproportionate hardship on the defendant, whereas plaintiffs have taken no steps to accommodate their artificial improvements and inadequate artificial outlet to the natural increase of surface-water attendant upon the orderly growth and development of the Borough of Swarthmore and the reasonable improvements being made by the defendant on his premises.

“21. It appears that the plaintiffs have an adequate remedy at law.

“22. If plaintiffs have been damaged by the defendant’s operations or the grade of abutting streets, their remedy is not in equity but the statutory remedy of proceedings before a jury of view, or relief from the proper municipal authorities for storm-water drainage.

“Wherefore, the defendant prays that the plaintiffs’ bill be dismissed at the cost of the plaintiffs and that the relief therein prayed for be denied.”

If this were a bill in equity to restrain defendant from permitting deposits of earth, etc., to wash from his land upon plaintiffs’ adjoining lot and the evidence disclosed that both properties were on a slope' and received the natural drainage of the hillside, and defendant improved his land by laying it out in lots, streets and walks, to support some of which a fill was required and the surface drainage carried soil from the hill upon plaintiffs’ adjoining premises and there was no negligence on the part of the defendant in making the improvements, under such circumstances, the damages sustained by the plaintiffs would be ‘damnum, absque injuria and it would be proper for us to dismiss the bill: Tess v. Charleroi Home Building Co., 96 Pa. Superior Ct. 505.

But although a defendant is not liable to a property owner (plaintiffs herein) for the increase flow of surface-water over or on to his property, arising merely from the changes in the character of the surface produced by the opening of streets or building of houses in the regular and ordinary course of expansion, a defendant, diverting the flow of surface-water so that it accumulates and flows upon abutting property where it would not naturally flow, is liable to the abutting owner in damages for the resulting injury: Meninchino v. City of New Castle, 96 Pa. Superior Ct. 405.

The defendant’s answer raises preliminary objections under Rule 48, subdivisions 6 and 7, which are as follows:

“(6) That upon the facts averred, plaintiff has a full and adequate remedy at law;

“ (7) That for any other reason, defendant should not be required to answer the facts averred, since he has a full and complete defense to plaintiffs’ claim, specifically stated, which does not require the production of evidence to sustain it.”

The question to be decided is not whether the complaint is so clear in both form and substance as to entitle plaintiffs, without amendment, to proceed to trial, but whether, under the facts averred, it shows as a question of law that plaintiffs are not entitled to recover: Gray v. Phila. & Reading C. & I. Co., 10 D. & C. 400, 23 Schuyl. Legal Rec. 7 (1926). The same rule is thus expressed in Hershey et al. v. Brotherhood’s Relief and Compensation Fund, 9 D. & C. 167, 31 Dauphin Co. Reps. 51, that an answer raising the question of the sufficiency of the averments in a bill in equity is not within the purview of subdivision 7 of Equity Rule 48, inasmuch as that rule contemplates a defense to the claim and not an allegation of the weakness or insufficiency of the averments of the bill to sustain the action. Precisely to the same effect is Goldstein v. Goldstein, 7 D. & C. 356.

Another principle pertinent to the instant case is that preliminary objections to a bill in equity cannot be based on matters extraneous to the matters contained in the bill: Paris v. Reichard, 10 D. & C. 165; Wettengel v. Robinson et al., 74 Pitts. L. J. 325.

Both of these principles are ignored in defendant’s preliminary objection. Many of the objections are predicated on alleged weakness or insufficiency of the averments in plaintiffs’ bill and on matters extraneous to those contained in plaintiffs’ bill.

Another principle of pertinent application is that, as to the character of objections, Equity Rule 48 must be construed in the same way as similar objections to plaintiffs’ statement of claim under the Practice Act of May 14, 1915, P. L. 483 (Gray v. Phila. & Reading C. & I. Co., 286 Pa. 11), and it would seem to clearly follow that for the purposes of the case, plaintiffs’ averments of fact must be accepted in all respects as true. Finally, the principle of Strizakv. Danacko, 11 D. & C. 150, 25 Sch. Leg. Rec. 97 (1929), is to be borne in mind, to wit, that a bill in equity should not be dismissed because of objections under Equity Rule 48, unless the facts averred show that the plaintiffs cannot possibly recover: Rutherford Water Co. v. Harrisburg, 297 Pa. 33.

Is the instant case such that under the averred facts of the bill of complaint the plaintiffs cannot possibly proceed in equity?

To induce equity to refuse its aid to a suitor, it is not sufficient that he may have some remedy at law. Unless the remedy at law is as full, complete and adequate as equity would give to plaintiffs, the chancery jurisdiction will be sustained: Pennsylvania R. R. Co. v. Bogert, 209 Pa. 589; Apollo Trust Co. v. Safe Deposit Co., 31 Pa. Superior Ct. 524; Sears v. Trust Co., 228 Pa. 126.

Jurisdiction in equity depends not so much on the want of a common law remedy as upon its inadequacy, and its exercise is a matter which often rests in the discretion of the court: Bierbower’s Appeal, 107 Pa. 14; Edison Co. v. Power Co., 253 Pa. 457; Lehigh Valley R. R. Co. v. Graham, 64 Pa. Superior Ct. 437.

The relief prayed for necessarily invokes the jurisdiction of the court of equity: Williams v. Finlaw, Mueller Co., 292 Pa. 244.

The existence of a statutory remedy which is not exclusive will not divest the jurisdiction of a court of equity: Hutchinson v. Dennis, 217 Pa. 290.

Injunction, we believe, is the proper remedy, for as late as 1927, in a case of transcendent importance from the standpoint of the value of the property involved (Lehigh & Wilkes-Barre C. Co. v. Pittston C. M. Co., 289 Pa. 492), the State Supreme Court recognized the availability and propriety of injunction for preventing the owner of land from collecting water coming on to his own premises and discharging it in bulk on to his neighbor’s property. That the character of the property there owned was coal mines and the nature of the water collected and discharged, mine water, were wholly without significance.

Injunction was again recognized in Rielly v. Stephenson, 222 Pa. 252, as an available proceeding to restrain the unlawful discharge of water upon neighboring land. The fact that the injunction was denied on substantive legal grounds is immaterial as to the availability of the proceeding.

It is expressly averred in the bill that the injury threatened will be substantial, recurrent and irreparable, and the bill as a whole makes it apparent that no adequate remedy is available on the law side of the court.

We believe that the plaintiffs’ bill establishes the substantive right to relief.

Three fundamental fallacies underlie defendant’s answer; the first two fallacies of law, the third a fallacy of fact.

He interprets the law of the Commonwealth to be that because defendant’s land is urban in character, defendant is free to develop his land to its full extent and, as a part of such development, to divert the natural course of water falling thereon, intensify the volume of the run-off, gather and collect it in artificial channels and discharge it on the lower contiguous land, the only qualification being against such developer’s negligence.

Nothing could be farther from the status of the law. No owner of higher land, be it urban, farm, mine or otherwise, now has, or at any time in the history of this Commonwealth ever did have, the right to divert water from its natural flow, collect it in bulk and discharge it on the lower land. The distinction between urban and rural property — which is of modem origin only— is not one of broader rights in the owner of the higher land, but of the lower land. Under the civil law and early decisions of this Commonwealth, the owner of the lower land was without right to turn back water which came in its natural flow from higher contiguous land, and this is still the law as to rural property. This rule has been modified under present decisions with respect to urban land, and it is now held that the owner of such lower land is no longer required to accept the flow and that he can obstruct its entrance and turn it back on the higher land from which it comes, being responsible only for negligence. The modification of the rule, the elasticity in the modern status, is one solely in favor of the lower land. Nowhere in this State, at no time, now or heretofore, was there existent a right in the owner of the higher urban ground to divert, intensify and collect his surface or other water and cast it in bulk on the private property of others. The sole effect of urban location is that he cannot now insist that the lower owner shall accept even the normal flow draining through natural channels. Urban location is significant only in the right to obstruct flow, but not in any right to cause flow. As to the latter, no right exists or ever existed in the law of the land. Urban location restricts, not enlarges, the rights of the higher owner. A few decisions only are necessary to demonstrate the foregoing.

Lehigh & Wilkes-Barre C. Co. v. Pittston C. M. Co., 289 Pa. 492:

An injunction issued against the collection of mine water and its discharge into the neighboring mine owned by another, and although mining land was placed in the rule as to rural land, the court held injunction should issue. The court, inter alia, said (page 497) : “The right to use land for agricultural or mining purposes in the useful and proper manner, although it may result in some additional flow of surface-water upon the land of an adjoining owner, is undoubted, but the right to collect such water and to conduct it upon another’s land through an artificial channel cannot be sustained. While proper farming or mining may affect the flow of surface-water, yet when it departs it must be in a natural course and not collected together and cast upon lower land by artificial means: Kauffman v. Griesemer, 26 Pa. 407; Locust Mountain Coal and Iron Co. v. Garrell et al., supra; Strauss v. Allentown, 215 Pa. 96; Rielly v. Stephenson, 222 Pa. 252.”

The judicial pronouncements- in Rielly v. Stephenson, 222 Pa. 252, also hereinbefore referred to, are likewise in point, even though the party there seeking the injunction was the owner of the higher land and the injury complained against was the turning back of water by the lower owner. The modern rule as to rural land is thus expressed:

“The owners of lots in cities and towns buy and own with the manifest condition that the natural or existing surface is liable to be changed by the progress of municipal development. All such owners have equal rights, neither lessened nor increased by priority of improvement, and the primary right of each owner is to protect himself and his lot from loss or inconvenience from the flow of surface-water. The owner at the foot of the slope is under no obligation to allow his lot to continue as a reservoir for the surplus water of the neighborhood. He may shut it out by grading or otherwise, and the fact that thereby he may incidentally increase the flow on the adjoining lot neither makes him answerable in damages nor affects the adjoining owner’s right in his turn to shut out the original, plus the increased flow on his lot. The owner cannot be coerced as to time or manner of improvement by risk of having put upon him the burden of providing for the flow upon others.

“Some things, of course, he may not do. He may not proceed negligently so as to do unnecessary damage to others. But, so far as he acts upon his right to protect his enjoyment of his own property, any incidental loss to his neighbor is damnum absque injuria. It is clearly settled, however, first, that he may not obstruct a natural channel for the flow of the water, or a channel that has acquired the character of'an easement; and, secondly, he may not gather surface-water into a body and discharge it on the adjoining land. His right is to shut out the invading water, as a common enemy, for the protection of his own land.”

Wilson v. McCluskey, 46 Pa. Superior Ct. 594 (1911), is another leading ease having followed the Rielly case. The essence of this case was the shutting out of water and not the collecting of water and the easting it on to the land of another.

Defendant’s 19th objection is predicated upon an assumption that plaintiffs are bound to exercise this right, and, hence, are outside the protection of equity. The law is the other way. The question was directly raised in Wilson v. McCluskey, 53 Pa. Superior Ct. 25, and it is held that an owner of a city lot is not bound to protect himself from surface-water from his neighbor’s land by the countervailing obstruction; and, hence, that where an owner of a city lot with a building thereon deposits ashes and dirt on his own lot, but near to his neighbor’s line, and eaves and water-spouts on his building are so constructed that the water from them carries the dirt and ashes on to the neighbor’s land, he is liable in damages to his neighbor for the injury sustained, and in an action to recover such damages, the court cannot say as a matter of law that it is his neighbor’s duty to erect on his premises a countervailing obstruction.. And see Gift v. City of Reading, 3 Pa. Superior Ct. 359, holding that in regulating the flow of surface-water on the streets, municipalities have no right to cast it upon adjacent property, and that water thus diverted must first pass over the intervening lands of others, will not affect the question of liability.

In Strauss v. Allentown, 215 Pa. 96, in holding that the municipality was not liable for increasing the flow of water on plaintiff’s land due to the improvement, opening and establishment of streets, the court pointed out that (page 98): “The city had not diverted the water into any artificial channels and it flowed into plaintiff’s tail-race as it had done before, because the race was the lowest point of the watershed.” In other words, it was simply an increasing by the improvements of streets of the amount of water which was discharged upon the lower land. The natural flow of the water was in no wise changed, and, as the court was careful to point out, it was not gathered into artificial channels.

The Note to Gray v. McWilliams, 21 L. R. A. 593, beginning on page 595, collects the decisions of other states and establishes clearly as the rule that surface-water cannot be collected in artificial channels and precipitated in undue and unnatural quantities upon the lands of a neighbor.

Even a municipality is without power to divert the flow of water and cast it in bulk on private land. Thus, in Weir v. Plymouth Borough, 148 Pa. 566, it was held that a municipal corporation is liable for changing the natural course of surface-water on its streets and throwing it on the land of a private owner, and the consent of the owner of the land upon which the water is directly thrown does not constitute a defense if the water necessarily finds its way to the plaintiff’s property and causes an injury thereon.

On liability of borough to property owner for dumping water on his land is Torrey v. City of Scranton, 133 Pa. 173; Weir v. Plymouth Borough, 148 Pa. 566; Bohan v. Avoca Borough, 154 Pa. 404; Matlack v. Callahan, 25 Pa. Superior Ct. 454.

Almost identical in its facts to the case at bar is Lion v. Baltimore City Passenger Ry. Co., 47 L. R. A. 127, wherein it was decided that the changing of accustomed flow of surface-water on a street and centralizing it in underground drains and a vault, where but part of the water had flowed on the surface, is done at the peril of providing adequate means to discharge the water so gathered and to discharge it in a way that will not be injurious to others; and that the employment of a competent engineer to direct the work is not the fulfillment of a duty to avoid injury to another, when, notwithstanding the engineer’s competency, the work as constructed does cause the injury.

Defendant’s second fallacy of law is that he has the right to employ the public highways as a conduit for the water collected from his property, and implies in paragraph 10 of the answer that if the borough has not constructed the road with drains, etc., to carry off the water, that that is no fault of the defendant. By paragraph 22 it is contended that defendant’s liability ceased when he dumped the water into the borough street, and that if plaintiffs have been damaged, their recourse is against the municipality. Such a legal position was judicially rejected as early as Martin v. Riddle, in 26 Pa. 415 n. It there appeared that for a long time there had been a culvert underneath the road which separated lands of the plaintiff and defendant through which the natural flow had been discharged across said road into the channel aforesaid. It became choked up from neglect and the authorities of the Borough of Manchester, at the instance of the plaintiff and others, had built a new culvert in its place. After this, the amount of water flowing through said channel was greatly increased in time of storms by means of a road cut into the hill by an adjoining proprietor (a cemetery company), which collected into one drain and thence into this channel large quantities of water which had been_ previously discharged in a natural way over a large surface. This increase of water did great injury to the defendant, and to protect himself therefrom he stopped up the culvert and thus threw the water back upon the road on the plaintiff’s side of it, overflowing his land and interfering with his garden operation. Defendant undertook to justify his act by advancing as a legal proposition that when he had dumped the water on the road, it became the burden of the municipality to care for it. This proposition was rejected by the court in the following language: “Nor can the defendant justify himself by saying that he only turned the water upon the road and that it was the duty of the authorities of Manchester to provide means for carrying it off. A road is a way for travel, not for water; and it would be ruinous to our public roads if each adjoining proprietor could insist upon discharging the drainage of his land upon them or preventing the roads from being drained upon his land. Roads are made for the convenience of travel, and in no sense to relieve land bordering upon them from the burdens to which they are naturally subservient. When there is a natural channel or hollow for discharging the flow of water, it must be suffered to remain until altered by agreement of those concerned, and the water cannot be turned upon the road until the proper authorities have provided means of carrying it away: Corp. J. C. Dig., 39', 3, 181.”

In Lorah v. Amity Township, 35 Pa. Superior Ct. 529, it appeared that the supervisors had opened drains alongside of a public road, and waters which naturally flowed from the land on to the land adjoining were carried off by the drain, and this condition of things existed for many years. A subsequent board of supervisors closed up the drain and again diverted the water on to the neighboring land. It was contended by the abutting property owner that the ditch alongside the road was an open watercourse for his benefit and with which, the municipal authorities could not interfere, concerning which the court said (page 533): “The plaintiff never acquired a right to use the road as a conduit to carry the water from his premises. ‘Roads are made for convenience of travel and in no sense to relieve land bordering upon them from the burdens to which they are naturally subservient:’ Martin v. Riddle, 26 Pa. 415 n. The non-suit was right to be granted.”

“Defendant’s comprehensive plan (which) contemplates the effective drainage of his lots into the abutting streets and highways,” as stated in paragraph 13 of the answer, and dumped on to and along the borough thoroughfare to sweep itself and its accompanying debris on to plaintiffs’ land is an unlawful plan, and the attempt to slip out of responsibility by discharging the flow on a municipal highway is a futility. It is private flow, notwithstanding it is directed on to a public highway.

Moreover, the complainants do not aver that all the water discharged from the vault runs down and altogether on the street, hut aver that the water runs not only “on” but “along” — that is, “nearby” — the street and on to plaintiffs’ land. (See paragraph 13 of the bill and paragraph 2 of the prayers for relief, and paragraph 18 avers a diversion and unlawful additional drainage way for defendant’s water directly on to plaintiffs’ property.) It nowhere appears or is properly inferable from the bill that this drain of defendant is but a temporary expedient (see paragraph 13 of the answer), and equity will not concern itself as to whether it is or not.

The third major fallacy of defendant’s answer — one of fact, as before stated — is its assumption that defendant’s water so directed, collected and discharged is carried into the open watercourse through plaintiffs’ land; that said watercourse is the natural course for defendant’s water and that the damages averred ensue from plaintiffs’ failure to provide sufficient outlet from his dam or pond. (See paragraph 16 of answer.)

The averments of the bill are that defendant diverted, collected, bulked and discharged water not into the watercourse, but that it flows and is discharged “into, on and over plaintiffs’ said premises.” (See paragraphs 13, 14, 16 and 18 of the bill.)

Nowhere from plaintiffs’ bill is it properly inferable that the damage results from a backing up of water from plaintiffs’ pond. It is properly infer-able from the bill that the water flows in bulk on to plaintiffs’ land without going into the watercourse at all and that the quantity which gets into the watercourse is more than its size will accommodate. See Mason v. Fulton County Comm’rs, 24 L. R. A. (N. S.) 903. It appears from the bill that the water dumped on to plaintiffs’ land is water much of which is diverted from its natural flow. Open watercourses through the lower owner’s land can never be adversely used with legal countenance for such character of drainage: Manteufel v. Wetzel, 19 L. R. A. (N. S.) 167.

It is not necessary, in order for relief to plaintiffs, that they show defendant’s improvements were constructed in a careless or negligent way. Regardless of the degree of care employed, defendant’s water cannot be diverted, collected and cast in bulk on plaintiffs’ premises. Lion v. Baltimore City Passenger Ry. Co., 47 L. R. A. 127, is the complete answer, [a case in which it was held] that even the employment of a competent engineer to direct the work [is no defense], when, notwithstanding his competency, the work as constructed does cause the injury. The averments of the bill as to defendant’s acts and the resultant injury to the plaintiffs’ premises are sufficient allegations as to the impropriety and unreasonableness of defendant’s action.

“The lack of public storm sewers creates no right in defendant to use the public highway as conduits for its water. Indeed, such lack is a definite inhibition to defendant against its use:” Martin v. Riddle, 26 Pa. 415 n. Nor does the bill aver that the water discharged on said road drains into the creek or rivulet, but, on the contrary, that they are discharged in such bulk from the road on to, in and over plaintiffs’ land.

Nowhere in the bill is there any averment from which an inadequacy of plaintiffs’ outlet pipe for the capacity of the open watercourse is inferable. This objection of inadequacy constitutes “extraneous matter” which cannot be considered: Paris v. Reichard, 10 D. & C. 165, and Wettengel v. Robinson, 74 Pitts. L. J. 325.

Plaintiffs are under no obligation to erect countervailing obstructions to the flow: Wilson v. McCluskey, 53 Pa. Superior Ct. 25, supra.

The irreparable injury and disproportionate hardship represented in the 20th objection is irrelevant. The water complained against is not a “natural increase of surface-water attendant upon the orderly growth and development of the Borough of Swarthmore and reasonable improvements being made by defendant on his premises.” Defendant cannot develop his land at the injury or destruction of the plaintiffs’. The orderly growth and development of the borough has nothing to do with the case, except its bearing on the right of the plaintiffs to shut out defendant’s water if they choose and if it can be practically done, but this plaintiffs are not required to do in order to get equitable relief. Defendant’s concept that because his property is located in a borough he can develop it as he pleases, and divert, collect and dump water in bulk on a municipal highway, not constructed to receive it, or along the highway, to the injury of another’s land, is a fallacy.

The decisions above quoted demonstrate injunction as the proper remedy, and allegations of irreparable, recurrent and continuing damage demonstrate the absence of adequate legal remedy.

The damage threatened in the bill is not due to any act of the borough, but is due to defendant’s unlawful attempt to employ the municipal highway as a private conduit for his surface-water; and, moreover, the bill plainly avers that the water from said vault runs not only down on plaintiffs’ premises from the highway, but also from along the highway.

Prom a careful perusal of the bill in equity, and we must confine ourselves to the averments thereof and not consider extraneous matters, we are of the view that the defendant has changed the flow of the surface-water, not such change as is a consequence of the gradual and ordinary development of rural into urban property, but that the defendant has diverted water in such a fashion as to compel it to flow on to the plaintiffs’ premises as it had never done before; that is to say, an excessive flow and more than the ditch or stream or watercourse could ordinarily handle- True it is that the doctrine is that surface-water is a common enemy which every proprietor may fight to get rid of as best he may, and the same principle applies to individuals as well as municipalities, but that doctrine is not applicable here, as the averments of the bill warrant the conclusion that the water would have flowed, unless these radical changes had been made, upon the plaintiffs’ premises as the servient tenement without damage to plaintiffs had it not been for the erection of the storm sewer and other receptacles to receive the water from the defendant’s premises, then discharging it in large volume eventually on plaintiffs’ premises to his detriment, prejudice and damage. An individual is just as liable as a municipality when the flow of surface-water is so diverted that it accumulates and flows upon abutting property, where it would not flow naturally, and, therefore, is liable to abutting owners in damages for the resulting injury: Meninchino v. City of New Castle, 96 Pa. Superior Ct. 405; Rohrer v. Harrisburg, 20 Pa. Superior Ct. 543; Torrey v. Scranton, 133 Pa. 173; Woolheater v. Mifflin Township, 74 Pa. Superior Ct. 557.

We have carefully noted the case of Tess v. Charleroi Home Building Co., 96 Pa. Superior Ct. 505, but the facts of this case are different.

Conclusion.

It plainly appears defendant’s objections are totally devoid of merit. The preliminary objections should be dismissed and defendant required to answer over, under penalty of having the bill taken pro confesso; therefore, we make the following

Decree.

And now, Nov. 1, 1929, the above matter coming on to be heard by the court in banc upon bill of complaint, answer raising preliminary objections, oral arguments and briefs, after due consideration, it is ordered, adjudged and decreed that the preliminary objections be and are hereby dismissed and defendant required to answer over, under penalty of having the bill taken pro confesso.

From 'William K. Toal, Media, Pa.


author: Fleming, P. J.,

text:
    Stere’s Case.

      N. B. Spangler, for petitioners; W. G. Runkle, for respondent.
    July 30, 1929.
   Fleming, P. J.,

— This is a proceeding upon petition of Howard A. Stere, father of Dorothy Stere, ten years of age, and Lois Stere, six years, for an order determining the custody of such children.

It appears from the testimony adduced at the hearing that the petitioner and his former wife, Nellie A. Stere, now Taylor, are divorced; that, prior to their divorce, they were residing in the City of Williamsport, County of Lycoming, this State, and that upon the representation of the said Nellie A. Stere, now Taylor, it was mutually agreed between the petitioner and his then wife that these children be placed with either the paternal or the maternal grandmother for a period of two weeks while she, the said Nellie A. Stere, now Taylor, took a nursing assignment in South Williamsport. The maternal grandmother, who testified at the hearing, stated that she had refused to take the children, whereupon they were taken to the home of the paternal grandmother, Patience Stere, in Union Township, this county, where they now reside. The court is fully satisfied that Patience Stere, the grandmother, and Mary Stere, the aunt, who resides with her mother in Union Township, are both competent persons to rear and maintain these children. The court is further satisfied that the Stere home in Union Township is a Christian home, long since established and likely to continue as such until these children are reared to womanhood. We are fully convinced that since their placement with the paternal grandmother and aunt the children have been well cared for and instructed in a proper manner. The father, the petitioner, is still employed in the City of Williamsport, where he earns a monthly wage of approximately $160. He makes weekly visits to his children, being situated sufficiently near them to make week-end visits possible.

The mother of these children, after separating herself from her husband and children, finally arrived in Carlisle, Pa., where she became acquainted with Taylor, her present husband. According to Taylor’s testimony, he was then serving in the United States Army and was stationed at the Carlisle barracks. He testifies that the mother of these children obtained employment in Carlslie, working in several different restaurants until his term of enlistment in the army expired, when she went with him to Cumberland, Md., their present place of residence. He denies that, prior to their marriage, which has only recently occurred, the relations between him and the mother of the children were improper in any way. He says that he is now employed by the Kelly-Springfield Tire Company at a monthly wage of $150; that he maintains a home and is willing to take the children and provide a home for them. His period of residence in Pennsylvania is confined to the time when he was assigned as a soldier to the Carlisle barracks. We know nothing of him other than what he tells us of himself, and we have no testimony whatever of the nature and character of the home! which he alleges he maintains in Cumberland, Md.

The Act of June 26, 1895, P. L. 316, as amended by Act of May 13, 1925, P. L. 638, provides that in disputes between father and mother relative to custody of their children, the court shall decide which, if either, parent shall have such custody, regard first being had to fitness of such parent and best interest and permanent welfare of the child: Com. v. Daubert, 24 Schuyl. Legal Rec. 409.

Were it only a question as to the mother’s residence in another state, the mother and respondent might point to Com. v. Black, 79 Pa. Superior Ct. 409, where it was held that a mother was entitled to the custody of her minor children residing with their paternal grandparents, where the father was not able to establish a home for them, and it is immaterial that the home which she offers is in another state.

But more appears in this case. We are bound to consider primarily the fitness of each parent and the best interests and permanent welfare of the child. When the court is satisfied that the best interests of the child will be served by giving custody to father, such decree will be made: Com. v. Aransky, 24 Schuyl. Legal Rec. 62; Com. v. Adams, 20 Berks Co. L. J. 179; 11 D. & C. 712; Com. v. Handley, 25 Luzerne Legal Reg. 57. The custody of a five-year-old girl was given to father where parents of mother were hostile to father, but his parents were not hostile to her. The giving of such custody was for the best interests of the child: Com. v. Horisk, 43 Montg. Co. Law Repr. 25, affirmed 90 Pa. Superior St. 400.

It plainly appears from the testimony that this mother was more interested in earning money than in caring for her children. While living with the father of their children, she preferred to be employed in lunch rooms at night rather than to be in her home with her children, as a good mother should be. The father has testified that his earnings were and are $160 per month. Her present husband has testified that his earnings are $150 per month. The conclusion is definite, therefore, that if there was necessity for her to work at night, with a husband who earned $160 per month, there would be an equal necessity for her to become a wage-earner with a husband whose wages are $150 per month. Again, we find her preferring to place her children with their grandparents while she worked as a nurse. Taken all in all, we find that her desire to be with her children was not that which a mother should exhibit.

We know nothing of her present home and its environment. On the other hand, we are fully satisfied with the correctness of the Stere home in Union Township. Further, we are satisfied that the father is fully fit to continue the custody of his children. We are not willing to send them beyond the borders of our State into a home of which we know nothing and controlled by a new husband of whom we know less.

We recognize the duty imposed upon us to afford an opportunity for the continuance of maternal affection. We shall form our order so that the mother, if she so desires, may see her children at reasonable times.

And now, July 30, 1929, the prayer of the petition is granted and custody of Dorothy Stere and Lois Stere, minors, is awarded to the father, Howard A. Stere, with the provision that they shall continue to reside at the home of Mrs. Patience Stere in Union Township, this county, and with the further provision that the mother, Nellie A. Stere, now Taylor, shall be permitted to see such children at the home of Mrs. Patience Stere, aforesaid, at reasonable times, or elsewhere, if and when the consent of the Juvenile Court officer be first had and obtained.

From S. D. Gettig, Bellefonte, Pa/


author: Potter, P. J.,

text:
    Lawver and Walter v. Snyder County Poor Directors.

      E. E. Pawling, for citation; J. G. Weiser, for demurrer.
    Sept. 17, 1929.
   Potter, P. J.,

— It is admitted that David Lawver is, and for some time has been, a pauper supported by the Directors of the Poor of Snyder County. He is an old man, upwards of seventy-two years of age, and has an incurable disease of the heart, as testified to by Dr. A. J. Herman, his physician, which has progressed so far as to greatly endanger his life should he be put to manual labor. He is a peculiar old man, with decidedly set ways of his own. Several places' were secured where he could be kept and maintained for pay with families in his neighborhood, he being unmarried and having no place to go.

To some of these places he would not go and at others he stayed a day or two and then came back to the home of Ammon C. Walter, with whom he has been living for some time. Walter says he does not want him, but will not turn him out on the street to perish. Of course, it is plain law that a pauper must go to the place prepared or secured for him, if of a decent character, or the directors of the poor may strike his name from their books. But if, in this case, that was done, this old man might perish on the public highway unless some kindly-disposed person took him in. He must not be left to perish, peculiar and set in his ways as he may be. Humanity demands that he be cared for somewhere and somehow. Apparently he will stay nowhere but at Walter’s, and Walter cannot and will not turn him out to die. If he did, an action of some kind might lie against him as being directly or indirectly the cause of the pauper’s death. But who is to pay Walter for keeping Lawver? Lawver cannot. Then who will or should? Surely Walter cannot be expected to keep him for nothing. He is a poor man himself and cannot do it. His maintenance naturally falls upon the directors of the poor. This is a peculiar case. The directors of the poor have the law on their side, strictly speaking, and they have a question here that may be hard for them to solve. There is no doubt in our minds but that they want to do their full duty to this contrary old man, but the trouble is that he will not try to adapt himself to their provisions or endeavors for him.

Walter and Lawver have presented their joint petition to us asking for a citation in the Quarter Sessions on the directors of the poor, requiring them to show cause why they should not pay Walter for the time he has kept and maintained this pauper. The directors of the poor set up that they never placed the pauper with Walter and had no contract with him. Sanders, a member of the poor board, says when Lawver would stay no place but at Walter’s, he offered him $10 a month to keep him, which was refused. Walter says that Gemberling and Oldt, the other two members of the poor board, promised him $12 a month to keep Lawver. And, strange to say, this is not denied in the testimony. It was orally denied by counsel at the argument, but we have no denial on the record, although we were told these two men would be called to deny it, but they were not called.

We think Walter should be paid. It is not his fault that Lawver will stay at no other place, and it is not his fault that this pauper insists on staying with him, but he must be cared for somewhere.

The demurrer sets up that the Court of Quarter Sessions has not jurisdiction of the matter of Walter’s claim and that the Court of Common Pleas has by an action of assumpsit. This may be designated as a technical objection, and it is, but the several courts have their individual scope to cover. And it may be said that no difference in which court this question is settled, it should be settled. We heartily agree that it should be settled, but we cannot go beyond the powers and jurisdictions of each court. Each class of our courts has its own peculiar class of controversies to settle. We have examined the cases cited as well as others that are not cited. We find that disputes between two poor districts, involving money matters, must'be settled in the Quarter Sessions. So must the maintenance of the pauper when brought by himself. Also, the place of his settlement, but individual claims against the poor board must be brought in the Common Pleas in an action of assumpsit. And this proposition is supported by the cases of Redmond v. Poor District, 5 D. R. 731, 18 Pa. C. C. Reps. 276, and Directors of the Poor of Chester County v. Malany, 64 Pa. 144. The Quarter Sessions has not concurrent jurisdiction in claims like the one under consideration. We have looked in vain for cases conferring this jurisdiction on the Quarter Sessions, because of which we must hold that in the Quarter Sessions we cannot dispose of the claim of Walter. It should be brought in the Common Pleas as a common law action in assumpsit.

We are sorry we cannot make an order in this court for payment to Walter, and we very much dislike to oblige him to bring a suit in the Common Pleas. But, in order to prevent further litigation and to settle this question, we suggest that the directors of the poor pay to Walter, and that he accept, the sum of $10 a month for the time he has kept Lawver, and that he be permitted to continue to stay with him at this rate. It is earnestly hoped that both parties will act on this suggestion and that the matter may be adjusted as we have indicated. This is the order we would make had we the authority to do so in this court.

And now, to wit, Sept. 17,1929, the demurrer is sustained.

From A. Francis Gilbert, Lewisburg, Pa.


author: Stern, P. J.,

text:
    Commonwealth v. Ritter.

      Vincent A. Carroll, Assistant District Attorney, for Commonwealth.

      Louis F. McCabe and Edwand A. Kelly, for defendant.
    March 27, 1930.
   Stern, P. J.,

— The defendant, Willard A. Ritter, pleaded guilty to an indictment charging murder. The case is before the court to determine the degree of the crime, and, under the provisions of the Act of May 14, 1925, P. L. 759, to fix the penalty if it should appear that the defendant committed murder of the first degree.

The hearing of the testimony revealed, briefly, the following facts:

The defendant, Willard A. Ritter, is thirty-eight years old. He lived in Nor-wood, Delaware County, Pennsylvania, was a painter by trade, and for a time was in the real estate business; subsequently, he conducted a hotel or apartment-house, known as the White Horse Hotel, on the Chester Pike. He was married twenty-two years ago and has five children, the oldest twenty and the youngest nine years of age, the two oldest children being married. His wife is living and testified on his behalf at the hearing.

Except for the fact that he would occasionally indulge in drink, he seems to have lived on reasonably happy terms with his wife and family until the year 1924. At that time he and his wife became socially intimate with Mr. and Mrs. Thomas J. C. Kennard, the two men having become interested together in some real estate transactions. The two couples saw each other very frequently, sometimes daily, playing cards, dancing and going on trips together. Gradually there developed a growing intimacy between the defendant and Mrs. Kennard, and while the testimony does not indicate exactly when meretricious relations between them began, it would appear that they started about four years ago. Mrs. Ritter expostulated with Mrs. Kennard concerning the matter, but to no avail, and on two occasions there were altercations between Mr. Kennard and the defendant, in which the' defendant was beaten. The defendant quarreled with the brother and mother of Mrs. Kennard, and would alternately threaten to do away with the whole family and then apologize for his attitude.

Mr. and Mrs. Kennard were separated two or three times for short periods, and from 1927 on Mr. Kennard and his wife practically ceased living with one another. In 1928, Mrs. Ritter obtained a divorce from the defendant on the ground of cruel and barbarous treatment, arising, apparently, out of drunken spells on his part. It is intimated that Mrs. Kennard and the defendant actually lived together at one time during this period, and he seems to have taken more and more to drinking; indeed, to such an extent that he went to a sanitarium or hospital for the treatment of nervous and mental diseases in November, 1927, and stayed there for a period of two weeks, and went again to the same institution in December, 1928, for a period of one week, his condition in both instances being diagnosed as one of alcoholism. The doctor who treated him at this hospital testified that while defendant was a patient there he was emotional to the point of hysteria, that he was extremely excitable, and would break down and cry “over apparently nothing.” During this same period of the last four years he. was also arrested several times for charges growing out of drunkenness. In the divorce proceedings, Mrs. Ritter testified that he was sober on an average of only two days a week, that he “got very mean” when drinking, and that later on he was drunk every day.

Nellie A. Kennard, the wife of Thomas J. C. Kennard, was a woman thirty-seven years of age. She had been married for a period of sixteen years, and was the mother of three children, aged, respectively, fourteen, nine and two years.

On Dec. 7, 1929, the defendant rented an apartment at the home of Mr. and Mrs. George L. Patchel, at No. 412 South 15th Street, Philadelphia, and Mrs. Kennard visited him and spent the week-ends there with him, bringing there her two-year-old child. On Sunday afternoon, Dec. 29, 1929, the defendant and Mrs. Kennard had a violent quarrel, the exact origin of which is not disclosed, but the result of which was that Mrs. Kennard took a framed photograph of herself, which was in the defendant’s apartment, and broke it violently upon a chair, whereupon the defendant struck her in the face. Mr. and Mrs. Patchel insisted that she leave the apartment. She told them, by way of apology for the quarrel, that the defendant was all right except when he was drinking. The Patchels testified that the defendant showed considerable agitation and excitement. Mr. Patchel stated that after the quarrel the defendant looked like a man completely deranged, and Mrs. Patchel said that he looked like a man who had suddenly lost his reason. He told Mr. Patchel that he loved Mrs. Kennard better than his life, that he could not live without her, that he was no good, and that he “might as well finish it;” he also kept saying that he would kill her. He refused to dine with the Patchels that evening, telling them that he could not eat and that his nerves were all gone, and that as a matter of fact he had not eaten for four days.

That night the defendant tried repeatedly to reach Mrs. Kennard on the telephone, but without success. He spent the evening at the home of his wife; although, as above stated, she had divorced him, he seems to have continued to some extent friendly relations with her, and they were then living in the same house. Mrs. Ritter testified that he was very much upset, and at his request she gave him veronal tablets in order that he might sleep. On Monday evening, Dec. 30th, the defendant again tried to get Mrs. Kennard on the telephone at her home, and he seems to have prowled around there on the porch. On Tuesday, Dec. 31st, he sought Mrs. Kennard at her place of employment, a department store at 8th and Market Streets, and also kept telephoning to her during the day. That afternoon he told Mrs. Patchel that he loved Mrs. Kennard better than his life, but that he thought she had somebody else. Mrs. Patchel says that when the conversation turned on the subject of Mrs. Kennard, he seemed to go into a frenzy. Meanwhile, at about half-past 2 o’clock in the afternoon, he visited a pawnshop, where he had pawned a revolver some three months before, and obtained it out of pawn by pledging in its stead his overcoat and a ring. He then bought some bullets at another store, which bullets did not exactly fit the revolver, but, unfortunately, as the sequel shows, were sufficient for the purpose intended. He came to the department store in the late afternoon and had a verbal quarrel with Mrs. Kennard. He was overheard to say that he would give her five minutes to make up her mind. She started to call one of the store authorities, whereupon the defendant shot her, the first shot apparently striking her in the back. She then ran away from him, down some steps to a mezzanine, floor, and he followed her. She fell and he leaned over her and fired two more shots into her body. As the store employees, who -were attracted by the occurrence, began closing in on him, and one of them held him from the rear, he fired two shots into his own body, one into the- chest, which was later extracted from in back of his arm; the other bullet entered below the lowest rib, tore four holes in his liver, struck a rib, by which it was deflected, and was later extracted from the right side of his body. While, during the struggle and immediately thereafter, he made some apparent threats against the store employees who were trying to apprehend him, and desired to make a charge against one of them who had struck him, these expressions seem to have amounted to nothing more than incoherent and wild remarks on his part.

The employees of the department store who noticed the defendant immediately prior to the shooting said, in effect, that he was agitated and excited, that he looked desperate, and that his eyes were glaring. To one of them, who helped to take him to the hospital, he said that if he did not kill Mrs. Kennard, he “did not make a good job of it,” and further stated that “she was a good girl and I am no damn good, but she deserved it.”

That evening at the hospital the defendant said to the detectives that he had spent about $55,000 on Mrs. Kennard, that she had broken up his home and broken him, and that now his money was gone she did not want to have anything more to do with him. He further stated that she had made an appointment to meet him that day for lunch, but had failed to keep it. He was eager to know what had become of the picture of Mrs. Kennard which she had broken, because, he said, he wanted good care taken of it, as he “thought a whole lot” of it. He said to one of the detectives: “Now that she is gone I don’t care, I am not worried about the electric chair, but I don’t want her life and my life exposed, since we have been going together for the past seven years.”

These are the essential facts, and from a consideration of them the court has no hesitation in arriving at the conclusion, as it does, that the murder of Mrs. Kennard by the defendant was wilful, deliberate and premeditated and constitutes murder of the first degree.

The real question for the determination of the court is as to the penalty to be inflicted. The Act of May 14, 1925, P. L. 759, provides: “That every person convicted of the crime of murder of the first degree shall be sentenced to suffer death in the manner provided by law, or to undergo imprisonment for life, at the discretion of the jury trying the case, which shall fix the penalty by its verdict. ... In cases of pleas of guilty, the court, where it determines the crime to be murder of the first degree, shall, at its discretion, impose sentence of death or imprisonment for life. . . .”

It will be noticed that this statute leaves the penalty entirely to the discretion of the jury, or, in case of a guilty plea, to the court, and that it prescribes no rules for guidance in the exercise of such discretion, nor does it give any indication as to what was in the legislative mind as to the basis upon which such discretion was to be exercised. Of course, it is certain that the decision on this point, either by a jury or a court, is not to rest upon any conscientious scruple or objection to capital punishment in general. Indeed, if any juror had such scruples, he would be disqualified for service (Com. v. Bentley, 287 Pa. 539). The legislative question whether capital punishment shall be abolished or retained has not been transferred from the law-makers to the court; the law still is that the death penalty shall be imposed in proper cases and on the merits of each case; all that the Act of 1925, in effect, provides is that the death penalty is no longer to be the absolute and exclusive penalty in all cases.

What then should be the punishment inflicted upon the defendant in this particular case? What considerations should weigh in the matter? It must be assumed that the discretion given by the act is to be exercised by the jury or by.the court, as the case may be, on some rational basis, and not in an arbitrary, capricious or whimsical manner. The law, however, furnishes no precedents upon which any theory of determination of the question is to be sought. Indeed, it is obvious that the problem is not one of law at all, but only of penology.

In the present case, the court is acting really as a jury, and for that reason is not called upon to express the reasons by which it arrives at a conclusion. And since, as above pointed out, an opinion could have no authority as a precedent, or as laying down any legal principle of value in such cases, there is perhaps nothing to be gained from a judicial standpoint by a formal statement of the reasoning upon which the court’s conclusion is based. Since, however, the district attorney has earnestly urged upon the court that the death penalty should be imposed in this case, and counsel for the defendant have argued vigorously to the contrary, and since the life of the defendant is at stake, it would seem to be in order for the court to give some expression to the views which have guided it in its consideration of the important question involved. At least, by so doing, there will be obviated any suspicion that the findings reached by the court are casual or emotional, rather than guided by intellectual processes. As a matter of fact, while in murder cases there is frequent reference to “mitigating” or “extenuating” circumstances, no tribunal, as far as I know, has ever attempted to express the reasoning which leads to a conclusion as to just what such circumstances consist of, or, generally, as to what factors in such cases should incline a jury or a court to imposition of the one penalty as against the other. The entire subject seems to be one of an uncharted sea, and, therefore, even the expression of an individual opinion may be a slight contribution toward some rationalized penology.

Since, as above stated, the problem involved is one of penology and not of law, it would seem obvious that to look for principles which should govern the case the search must be directed, not to law books, but to standard treatises on penology. Unfortunately penology — and, indeed, criminology in general— is not a subject which has received any considerable attention in learned or scientific circles or educational institutions in the United States, at least from an analytical or philosophical point of view. In Europe the subject has long been regarded as a fairly exact science. From the time of the epoch-making work of the Marquis Beccaria, there have been noted criminologists and penologists in Italy, such as Lombroso, Enrico Ferri and Garofalo — -Ferri being the leading exponent of the so-called positivist or Italian, as distinguished from the earlier classical school. In France we have the standard works of Saleilles and Tarde, and in Germany that of Aschaffenburg, while in England the subject has been more or less treated by Havelock Ellis. These names are cited merely to indicate that we are backward in this country in any real scientific study of the abstract principles of penology. Indeed, it would be a great advance in the practice of criminal law in the United States if criminology were made a course of study in the law schools of our universities; it would awaken in the minds of lawyers a realization of the fact that society is vitally interested in the subject, and it would help to bring into the criminal courts lawyers who, being imbued with that idea, would practice the criminal law from a communal rather than a legalistic point of view, and would bring to those courts a dignity and seriousness which are now sometimes lacking.

Passing, however, from this observation, we come to the crucial question •underlying this and similar cases, namely, what is the purpose or object at which the law aims in the sentencing of those convicted of crime? Everyone, lawyers and laymen alike, will agree that, in order to determine whether the defendant in this or any other murder case should be' sentenced to death or life imprisonment, it is necessary to consider all of the features and circumstances of the crime and the history of the defendant who committed it. But from what point of view are these facts and circumstances to be marshaled? What is the objective to be reached? It is clear, for example, that if the purpose of the penalty is what is ordinarily understood to be punishment, that is to say, retribution, retaliation or vengeance, one should study the facts from that angle in order to decide what degree of suffering ought to be inflicted upon the defendant so that society may be revenged upon him for the crime which he has committed. If, on the other hand, the purpose of the penalty is merely to act as a deterrent upon other potential violators of the law, a totally different study of the facts must be made in order that that purpose may be wisely accomplished. So, too, with considerations of expiation, reformation and the like. In short, one must, before imposing a sentence, arrive in his own mind at some definite conclusion as to the purpose which it is sought to accomplish by the penalty. As was said by Edward W. Cox in his essay on the “Principles of Punishment as Applied in the Administration of the Criminal Law,” it is true that: “The principles that should govern the measure of punishment cannot be understood without a clear comprehension of the objects for the attainment of which the punishment is designed.”

Generally speaking, there have been advanced four theories as the basis upon which society should act in imposing penalties upon those who violate its laws. These are: (1) To bring about the reformation of the evil-doer; (2) to effect retribution or revenge upon him; (3) to restrain him physically, so as to make it impossible for him to commit further crimes; and (4) to deter others from similarly violating the law.

Let us briefly consider these in order:

1. As far as the principle of reformation is concerned, however important it may be in the general run of cases, it obviously has little or no application to such a case as the present. Whichever be the penalty here inflicted, the defendant will not again be in contact with society, and since secular law is concerned with one’s relation to the community and not primarily with his inward moral development, the spiritual regeneration of a defendant is not, in such a case as this, a dominant factor. In other words, it would not be a practical consideration weighing in favor of life imprisonment that thereby the defendant might be susceptible of moral reformation, whereas the opportunity for this would be denied to him if the death penalty were inflicted.

2. The second theory which has been urged as a basis for the imposition of penalties is that of retribution. This may be regarded as the doctrine of legal revenge, or punishment' merely for the sake of punishment. It is to pay back the wrong-doer for his wrong-doing, to make him suffer by way of retaliation even if no benefit result thereby to himself or to others. This theory of punishment looks to the past and not to the future, and rests solely upon the foundation of vindictive justice. It is this idea of punishment that generally prevails, even though those who entertain it may not be fully aware of their so doing. Historically, it may be said that the origin of all legal punishments had its root in the natural impulse of revenge. At first this instinct was gratified by retaliatory measures on the part of the individual who suffered by the crime committed, or, in the case of murder; by his relatives. Later, the state took away the right of retaliation from individuals, and its own assumption of the function of revenge really constituted the beginning of criminal law. The entire course, however, of the refinement and humanizing of society has been in the direction of dispelling from penology any such theory. Indeed, even in classical times moralists and philosophers rejected the idea entirely. Piato puts into the mouth of Protagoras the words: “No one punishes those who have been guilty of injustice solely because they have committed injustice, unless indeed he punishes in a brutal and unreasonable manner. When any one makes use of his reason in inflicting punishment, he punishes, not on account of the fault that is past, for no one can bring it about that what has been done may not have been done, but on account of a fault to come, in order that the person punished may not again commit the fault and that his punishment may restrain from similar acts those persons who witness the punishment.”

Seneca taught that the law, in punishing wrong, aims at three ends: “Either, that it may correct him whom it punishes, or that his punishment may render other men better, or that, by bad men being put out of the way, the rest may live without fear.”

In later days, Beccaria expressed the purpose of punishment as follows: “The end of punishment is simply to prevent the criminal from doing further injury to society and to prevent others from committing the like offense.”

Hobbes, in his “Leviathan,” said that “we are forbidden to inflict punishment with any other design than for correction of the offender, or direction of others.”

Innumerable, similar quotations might be given from the works of all the standard penologists and moral philosophers of almost every country and of every age, especially in these latter days of greater humanitarianism in the treatment of such problems. (See McConnell, “Criminal Responsibility and Social Restraint,”- from which the above are cited.)

3. Rejecting, therefore, the theory of retribution as a proper basis upon which to impose the penalty of law, we come to the third principle which has been advocated, namely, the restraint of the wrong-doer in order to make it impossible for him to commit further crime. Here we arrive not only at a justifiable basis for action but at one which is vital to the protection of society. To permit a man of dangerous criminal tendencies to be in a position where he can give indulgence to such propensities would be a folly which no community should suffer itself to commit, any more than it should allow a wild animal to range at will in the city streets. If, therefore, there is danger that a defendant may again commit crime, society should restrain his liberty until such danger be past, and, in cases similar to the present, if reasonably necessary for that purpose, to terminate his life. Admittedly, restraint by imprisonment can never be as wholly effectual as execution, and there are, from time to time, cases where imprisonment may not be sufficient for the protection of society. It is on this ground that it is pertinent to take testimony in regard to the history of a defendant and of the circumstances attending his commission of crime. If his record shows that he is of a dangerous type, or that he habitually commits grave crimes, or that he has a homicidal tendency, or that he is hopelessly depraved, or that he has a savage nature, or that he has committed murder under circumstances of such atrocity and inhuman brutality as to make his continued existence one of likely danger to society, then, in my opinion, the sentence of death is both justifiable and advisable. The community may not be safe with such a man in existence even though he be serving a term of life imprisonment; he may again commit murder within the prison walls, or may escape and again make innocent victims his prey, or may even, by cunning simulation of repentance, obtain a pardon from governmental authorities.

Examining the record of the present case from this point of view, in order to determine whether the defendant’s continuation in life would be a lurking menace to society, I find nothing in the evidence which would lead to that conclusion. The murder which he committed was the result of many years of entanglement — a terrible tragedy, it is true, but one which was not the result of any bloodthirstiness or lust for crime. His record is that of a drunkard, with a resulting tendency toward quarrelsomeness, but, outside of the present case, he cannot fairly be characterized as a man of uncontrollable violence or of homicidal tendency or having any general enmity to the laws of society. As far as the necessity of his own restraint is concerned, I would conclude, therefore, that, by his incarceration in prison for the remainder of his life, society would be sufficiently protected from any further depredations on his part.

4. This brings us to the final and what must be fairly regarded as one of the most important objectives of punishment, namely, the element of deterrence — the theory which regards the penalty as being not an end in itself but the means of attaining an end, namely, the frightening of others who might be tempted to imitate the criminal. Prom this angle a penalty is a cautionary measure, aimed at the prevention of further crime in the community. There has been much controversy and an enormous amount of literature on the subject as to whether the death penalty does or does not act as a deterrent. With that controversy we have nothing to do. As before stated, the law of Pennsylvania retains the death penalty as an optional alternative. The real question is not as to whether the death penalty is in general a deterrent, but as to the particular kinds of murder cases in which execution would or would not be most likely to effect deterrence. It becomes a problem of determining the basis upon which to make such classification.

My own opinion is that the extreme penalty of death works a deterrent effect, and, therefore, should be aimed against cases where a murder is committed from what might be called a mental, rather than an emotional, impulse — in other words, where the murder is deliberately planned from a sordid motive or where the likelihood of its occurring is callously ignored by those who commit some other crime which may well give rise to it. Typical examples would be eases of highway robberies, burglaries and robberies committed by raids on banks, stores and the like, murders committed by poisoning or other means in order to collect life insurance or to attain some other mercenary end. To my mind, it would be reasonable and proper in such cases, generally speaking, to impose the penalty of death. Where, however, a murder is committed under the impulse of some frenzy or strong passion, or where it results from a mind weakened by long brooding over a social entanglement, or by alcoholism or the like, such a person is not likely to be deterred by the example of a death penalty imposed upon those who committed similar offenses. Such murders are not the result of reasoning or of weighing considerations for or against the intended crime, and, therefore, they are not apt to be repressed by the force of example.

In the present case, the nature of the crime and the psychology of the criminal are clear. For several years the defendant, although a man of mature age, long married and the father of five children, had been embroiled in a love passion for a woman who was not his wife. She, of approximately the same age, and the mother of three children, apparently entered with him upon an illicit relationship. Having, by his business ability, succeeded in achieving a fair degree of material prosperity, he squandered large sums of money upon the woman who had thus come into his life. He developed an extreme jealousy in regard to her and what seems to have been a constant terror that she would desert him, especially when he had arrived at the end of his financial means. He took more and more to drinking and enfeebled his health and mentality to a point where he was obliged to go to a medical institution on two successive occasions a year apart. Finally, he reached so low a depth in the matter of his finances that in order to obtain the very pistol with which he committed the murder he was obliged to pawn his overcoat. He continually haunted the woman, besieging her with visits and telephone calls at her place of employment. For the few days immediately preceding the murder he was in a condition of tremendous excitement and agitation, even to the extent of doing without food. Immediately after the shooting he tried to commit suicide, firing two bullets into vital parts of his body, and it seems miraculous that although one of the bullets caused four perforations in his liver, his attempt to destroy himself was unsuccessful. Although he shot with the intention of killing his victim, and expressed the hope that he had done so, in the same breath he was solicitous about her photograph, for which he had a sentimental affection, and he expressed himself to the effect that, she being gone, he cared nothing about himself and was not concerned about his fate. The very afternoon of the murder he had told the proprietress of his lodging-house that he loved the woman better than his life. In short, the case was plainly one of a frenzied and jealous passion on his part, working on a man destroyed by drink and desperate by reason of the fact that he had come to the end of his resources. For the reasons already stated, it is not believed that the death penalty in a case such as this would have any effect of deterrence on persons who might commit similar crimes, because offenses of this nature are not the result of calm and thoughtful planning or of rationalized deliberation.

To sum up, therefore, my opinion is that in cases where a tribunal is called upon to determine the penalty to be imposed upon a murderer, the two elements which should be taken into consideration are those of restraint and deterrence, the death penalty being imposed when called for by either of these factors ; that the consideration of restraint may demand such penalty when the murderer has a record of crimes of violence, or a homicidal tendency, or commits a murder under such circumstances of calm and deliberate atrocity as to indicate a savage and hopelessly anti-social nature; that the consideration of deterrence may call for the death penalty when the crime results not from an emotional frenzy but from a deliberately and mentally plotted destruction of human life or a crime likely to involve it, as in the instances previously suggested; that otherwise the penalty of life imprisonment may be sufficient for the purpose of the protection of society; and that, from a study and analysis of the testimony in the present case, including the history of the defendant and all the circumstances leading up to, attending and following the commission of the crime, an adequate and proper penalty is life imprisonment. In conclusion, it may be said that, perhaps, after all, the penalty of life imprisonment is not so much a substitute for capital punishment as a slower method of inflicting it.

The court, therefore, adjudges the defendant to be guilty of murder of the first degree, and imposes upon him the penalty of imprisonment for and during the term of his natural life.