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the third assignment was speculative, and which were used in connection with the upon request should have been stricken from business carried on by the partnership. Aftthe record, but it could not possibly have er he had withdrawn from the partnership, done appellant any harm, because it was his sons and a corporation that succeeded meaningless as bearing upon the amount of them in business used the kilns and a part damages involved, and certainly does not of the land without charge. This use was constitute reversible error.

permissive only and not under any claim of Assignments of error overruled, and judg- right. These kilns were repaired or rebuilt ment affirmed.

when it became necessary, and a third kiln was located partly on the plaintiff's land.

Before work had been commenced on this (222 Pa. 671)

kiln, the president of the corporation was inPARKS V. PENNSYLVANIA CLAY CO.

formed that the location was partly over the (Supreme Court of Pennsylvania. Jan. 4, 1909.) line of its property. Before the kiln was ESTOPPEL ($ 93*) — TITLE TO LAND – ACQUI- completed, the corporation passed into the ESCENCE IN IMPROVEMENTS. Plaintiff owned an acre of land adjoining ignorance of his rights but without the

hands of a receiver, who finished the kiln in nine acres owned by defendants, wh quired the land at a receiver's sale. Plaintiff knowledge of the plaintiff. Subsequently, had been in the brick business with his sons, on notice of the plaintiff's title, he abanwho owned the nine acres and built two kilns doned the use of the kiln and took up the on his land, which were used in the business. After he withdrew from the business, he per: tracks leading to it. This was the situation mitted his sons and a corporation that suc- at the time of the receiver's sale, under ceeded them to use the kilns without charge, which the defendant acquired title to the and they were repaired by the corporation, the president of which knew that they were on

adjoining land. plaintiff's land, and the corporation commenced There was nothing in the facts proved a third kiln thereon. Before it was completed upon which an estoppel could be based, and the corporation passed into the hands of a receiver, who, without knowledge of plaintiff, fin.

a verdict was properly directed for the plainished the kiln, but on notice of plaintiff's title

tiff. he abandoned it, and defendant acquired title to The judgment is affirmed. the adjoining land. Held, that plaintiff in ejectment was not estopped to claim such land because of such use of it by the corporation.

(222 Pa. 586) (Ed. Note.-For other cases, see Estoppel, Cent. Dig. 8$ 264, 265; Dec. Dig. 8 93.*]


TRACTION CO. Appeal from Court of Common Pleas, (Supreme Court of Pennsylvania. Jan. 4, 1909.) Beaver County. Action by James I. Parks against the 1. STREET Railroads ($_117*)- COLLISION

CONTRIBUTORY NEGLIGENCE-QUESTION FOR Pennsylvania Clay Company. Judgment for

JURY. plaintiff, and defendant appeals. Affirmed. Where plaintiff, alighting from a street car,

Argued before MITCHELL, C. J., and caught the handhold of a passing engine, and FELL, BROWN, MESTREZAT, POTTER, as he placed his foot on the floor, he was struck ELKIN, and STEWART, JJ.

by the car from which he had alighted, and

there was ample evidence of the negligence of the J. F. Reed, for appellant William A. Mc-motorman in allowing his car to collide with the Connel, for appellee.

engine, inasmuch as plaintiff did not step on defendant's track, but was carried there while on

the engine, and after he had passed the peril FELL, J. This was an action of eject. of getting on the moving engine, the question of ment for an acre of land that adjoined a

contributory negligence was for the jury. tract of nine acres owned by the defendant roads, Dec. Dig. § 117.*]

[Ed. Note.-For other cases, see Street Railand had been used in connection with it in the manufacture of fire bricks. There was


TION AS A WHOLE. no dispute as to the plaintiff's record title. Where, in an action for personal injuries, He had purchased the land many years be- the court charged that the jury could allow only fore by deed duly recorded, and his title had the worth of plaintiff's earning power from the

time he reached 21 years, and during the renever been divested by conveyance or by mainder of his probable

natural life, a judgment legal process. The defendant had no record for plaintiff will not be reversed because the title. Its defense to the action was that the court referred, in view of an argument of plain

tiff's counsel, in a cautionary way to the duty plaintiff was estopped by his silent acquies of the jury to consider the probability of the cence with knowledge when improvements young man living to the allotted time of three were made on his land by the defendant's score years and ten. predecessor in title under the erroneous be

[Ed. Note.-For other cases, see Trial, Dec. lief that it owned the land.

This defense Dig. $ 295.*] was not sustained by the evidence.

Appeal from Court of Common Pleas, BeaAt a time when the plaintiff was asso- ver County. ciated in business with his sons, who then Action by Robert Garrett, in his own right, owned the adjoining tract, he built at his and Perry Garrett, by his guardian, against own expense two brick kilns on his land, I the Beaver Valley Traction Company. Judgment for plaintiffs, and defendant appeals. , track crossed that of the defendant at grade Affirmed.

at Crow's run. This railroad is seven miles The court below charged in part as fol- in length, and is used mainly to transfer lows:

freight cars to and from factories to the “There is another legal priuciple which you

tracks of another road. It has no passenger will consider in determining the question cars, stations, or regular stopping places, but of contributory negligence. He had a right its trains are stopped or slowed to enable to presume, unless he saw the car coming un- passengers to get on or off at any point on der circumstances that would indicate to him the road. Passengers ride in the cab of the that there was danger of a collision, that engine or on the tender, and get on and of at the street car would make the proper stop a step at the back of the engine. The plainbefore attempting to make the grade cross- tiff in going to and returning from his work ing, and if the circumstances were not such used both roads, changing from one to the as to indicate to him that the street car was

other at Crow's run. On the evening when not going to make the usual stop before he was injured, he came from Conway to reaching such a crossing, he would not be Crow's run on the defendant's car, and got guilty of contributory negligence in boarding off at the rear platform after the car had the train in the manner and at the place he stopped at a waiting room 200 feet from the did. Now this is a fact for you to determine. crossing. He saw an engine backing a train You will look at the young man's testimony. of freight cars slowly over the crossing from He said that he did not look for the car as he east to west. He ran on the east side of the ran down to board this engine; that he did public road, and reached the railroad track not know where it was, except that he left it as the engine was passing. He placed his and came down along the track to board the right foot on the step, caught the handbold, locomotive.

and as he placed his left foot on the floor "As we said to you before, when you come

of the cab, or was in the act of raising it to to consider the compensation for loss of earn- the floor, he was struck by the defendant's ing power, there are many contingencies car from which he had alighted. He at no that naturally enter into the determination time stepped on the track of the defendant of this question. You will take into consid-company. eration the probabilities of this young man

There was ample evidence of the negligence improving, looking at the testimony of the of the motorman in allowing his car to colphysicians, and from your observation of lide with the engine. The question to be conthe young man himself, and taking into considered is whether the case should have been sideration the history of the case from its withdrawn from the jury on the ground of inception down to the present time, and you the plaintiff's contributory negligence. On will also take into consideration the prob- the facts the turning point of the case in the abilities of his being able to do other kinds plaintiff's favor is that he did not step on the of work than that which he was doing at

defendant's track. He was carried there the date of the accident, when you come to while on the engine. He had safely passed make up your verdict as to the amount of the peril of getting on a moving engine, and compensation to which he is entitled; and, his negligence in that regard was not the having taken into consideration the prob- cause of his injury, although a circumstance ability of the young man living to the allot- that made it possible. But against such a ted time of three score years and ten, and all possibility he was under no duty to guard, the circumstances and contingencies that will because he had no reason to apprehend danprobably enter into the life of a man, and, ger from the defendant's car when on the bringing to bear that good judgment and engine. There was no causal connection be common sense which men of business and af- tween his negligence and his injury. The fairs cxercise, determine the amount of com- case is governed by the principles stated in pensation due to this young man."

Boulfrois v. Traction Co., 210 Pa. 263, 59 Atl. Verdict and judgment for Robert Garrett 1007, 105 Am. St. Rep. 809, and Besecker v. for $1,500, and for Perry Garrett for $6,000. Railroad Co., 220 Pa. 507, 69 Atl. 1039, 123 Defendant appealed.

Am. St. Rep. 714. Argued before MITCHELL, C. J., and

A part of the charge relating to the comFELL, BROWN, MESTREZAT, POTTER, pensation for the loss of earning power is ELKIN, and STEWART, JJ,

assigned for error: The learned judge, in

calling the attention of the jury to matters James L. Hogan and John M. Buchanan, to be taken into consideration in arriving at for appellant. William A. McConnell, for a conclusion on the amount of compensation, appellees.

spoke of the probability of the plaintiff's

improving, of his being able to perform other FELL, J. The plaintiff was employed as kinds of work, and of his "living out the an inspector of air brakes at the yard of allotted time of three score years and ten." the Pennsylvania Company at Conway, on The general instruction on the subject was the line of the defendant's street railway. accurate and thorough, and the jury were He lived with his parents near the line of distinctly told that they could allow only the

time he reached 21 years for and during directors save one. The directors who were the remainder of his probable natural life." thus removed have appealed. The language quoted was no doubt suggest- The act of assembly in question, that of ed by the argument of plaintiff's counsel that June 6, 1893, first came before this court for 70 years was the proper period to fix. There construction in Ross's Appeal, 179 Pa. 24, was not, as in Dooner v. Canal Co., 164 Pa. 36 Atl. 148, where Justice Dean said (page 17, 30 Atl. 269, the statement of a rule not 30 of 179 Pa., page 150 of 36 Atl.): “We are founded on evidence to be followed by the of the opinion that the intent of the act of jury, but rather a caution, in view of the 1893 is to confer on the courts of common argument advanced, to consider the probabil- pleas of this state a power by this new proities.

ceeding to ascertain the facts and determine The judgment is affirmed.

whether the directors have exercised a sound discretion in providing suitable building ac

commodations for all the school children of (222 Pa. 538)

the district.” And in Kittanning Township In re SLIPPERY ROCK TP. SCHOOL DIST. School Directors, 179 Pa. 60, 36 Atl. 151, this

Appeal of CUNNINGHAM et al. court said: “It will be a rare case, where (Supreme Court of Pennsylvania. Jan. 4,

the court belo has such superior opportu1909.)

nities for wise action as in these cases, that SchoolS AND SCHOOL DISTRICTS (8 53*)-RE- a purely appellate court would undertake to BOVAL OF SCHOOL DIRECTORS— REVIEW BY review its decree on the facts or the inferCOURTS.

ences therefrom, even conceding our power On appeal from an order of the court of common pleas in a proceeding under Act June to do so." And in Barr's Petition, 188 Pa. 6, 1893 (P. L. 330), removing school directors 122, 41 Atl. 303, a case which arose under for failure to provide suitable and adequate the same act of assembly, Justice Dean said school accommodations for the children of the district, the Supreme Court can only consider (page 127 of 188 Pa., page 304 of 41 Atl.): the matter as before it on certiorari, and look “The court below on ample testimony has into the record only so far as may be necessary found the facts warranting its decree. We to ascertain whether the court below exceeded would not touch it, unless there was a maniits jurisdiction or its proper legal discretion.

fest error in its finding or a flagrant abuse (Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. § 133; Dec. Dig. S

of its discretion." 53.*)

The question of the right to review in this Appeal from Court of Common Pleas, court does not seem to have been raised in Lawrence County.

the former cases, but we may suggest that Proceedings for the removal of R. Slem- the proceeding is entirely statutory, and no mons Cunningham and others, school direc- appeal from the judgment of the court of tors of Slippery Rock township, Lawrence common pleas is given by the statute. We county, under Act of June 6, 1893 (P. L. are at liberty, therefore, to consider the mat330). From an order of the common pleas ter only as being before us on certiorari, and removing them from office, the school direct we may look into the record only so far as ors appeal. Affirmed.

may be necessary to ascertain whether the Argued before MITCHELL, C. J., and court below exceeded its jurisdiction or its FELL, BROWN. MESTREZAT, POTTER, proper legal discretion. It matters not that ELKIN, and STEWART, JJ.

we might have reached a different conclusion

upon the facts, or drawn other inferences James A. Gardner, for appellants. J. Nor- therefrom. It is sufficient to say that in no man Martin, for appellees.

way does it appear from the record that the

court below went beyond the power conferPOTTER, J. This was a proceeding for red upon it by the statute, or that it in any the removal of school directors of Slippery way abused the discretion vested in it, in the Rock township, Lawrence county, under the inference which it drew from the facts or provisions of the act of June 6, 1893 (P. L. the conclusions which it reached. 330), for failing, without valid cause, to pro

The assignments of error are overruled, vide suitable and adequate school accommo- and the order and judgment of the court dations for the children of the district. Up- below is affirmed. on petition filed the court of common pleas appointed an inspector to visit the district, inquire into the facts, and make report to the

(222 Pa. 567) court. The inspector reported that the di- COMMERCIAL NAT. BANK v. KIRK et al. rectors had failed without valid cause to provide suitable accommodations. Thereupon

(Supreme Court of Pennsylvania. Jan. 4, 1909.) the court granted a rule upon the school di- 1. Courts (8 8*)—JURISDICTION–ENFORCING rectors, six in number, to show cause why


The courts in Pennsylvania will not enforce they should not be removed from office. the penal laws of another state. After answer filed and after argument, the [Ed. Note.-For other cases, see Courts, Cent. court made the rule absolute, as to all the Dig. & 19; Dec. Dig. $ 8.*}

2. Courts (8 8*)—JURISDICTION-ENFORCING | agree that the weight of authority sustains LAWS OF ANOTTIER STATE.

the general principle announced, but we are Where the Supreme Court of another state has decided that the liability of the directors of not convinced that it can have controlling a corporation in such state for failure to make force in the decision of the present case unà statutory return is a penal liability, it will der the circumstances. It must not be overnot be enforced in Pennsylvania, in an action looked that the liability sought to be enforced brought in its courts. (Ed. Note.—For other cases, see Courts, Cent. the first instance we must look to the law

here arises under a Montana statute, and in Dig. $ 19; Dec. Dig. $ 8.*] 3. PENALTIES (8 32*)--AFFIDAVIT OF DEFENSE. of that state to determine its nature, limita

In a penal action, no atfidavit of defense is tion, and extent. If the courts of that state required.

had not passed upon the question involved [Ed. Note.-For other cases, see Penalties, here, it would then be our duty to consider Cent. Dig. § 28; Dec. Dig. $ 32.*]

and decide it according to the general prinAppeal from Court of Common Pleas, Law- ciples of law applicable to such cases. But, rence County.

the Supreme Court of Montana has passed Action by the Commercial National Bank upon the question in several cases by hold. of Bozeman against C. J. Kirk and others. ing the statute under which the alleged liaJudgment for defendants, and plaintiff ap- its provisions must be strictly construed.

bility in this case arises to be penal, and that peals. Affirmed. Argued before MITHELL, C. J., and FELL, horn Trading Co. v. Tacoma Min. Co., 16

Gans v. Switzer, 9 Mont. 408, 24 Pac. 18; ElkBROWN, MESTREZAT, POTTER, ELKIN,

Mont. 322, 40 Pac. 606; Wethey v. Kemper, 17 and STEWART, JJ.

Mont. 491, 43 Pac. 716; State Savings Bank Oscar L. Jackson (Hartman & Hartman v. Johnson, 18 Mont. 440, 45 Pac. 662, 33 L and Chas. R. Davis, on the brief), for appel- R. A. 552, 56 Am. St. Rep. 591. We do not lant. J. Norman Martin, for appellees. feel at liberty to disregard these decisions of

the Montana courts, and must conform our ELKIN, J. The appellees were stockhold- administration of the law to them, and this ers in, and directors of, a mining corporation is true independently of what our views on of Montana. Under a statute of that state it the question involved might be. Ball v. Anis made the duty of the corporation to make derson, 196 Pa. 86, 46 Atl. 366, 79 Am. St. an annual report showing the amount of capi- Rep. 693. This view of the case makes it tal stock authorized, the proportion of the unnecessary to discuss the question raised as capitalization paid in, and the existing indebt-to the necessity of filing an affidavit of deedness, which report is required to be filed in fense. If penal no affidavit is required. The the office of the clerk of the county where argument of the learned counsel for appellant the principal place of business is located. In is able and exhaustive, and if presented to the present case the annual report was not us in the first instance, perhaps convincing, made nor filed as required by the statute. but we are bound by the Montana decisions Failure to make and file the report imposes as to the penal character of the statute; and, upon the directors a statutory liability to if penal, the disposition of the case by the jointly or severally pay the indebtedness of learned court below was clearly right. the corporation then existing, or any that

Judgment affirmed. sball thereafter be contracted, until such report shall be made and filed. This suit was

(222 Pa. 556) instituted in Pennsylvania to enforce against WALLACE v. PENNSYLVANIA R. CO. certain of the directors here the collection of (Supreme Court of Pennsylvania. Jan. 4, an indebtedness of the corporation due the

1909.) appellant bank in Montana. The right to re- 1. DAMAGES ($ 26*) – PERSONAL INJURIES cover as a personal obligation against direct

FUTURE PAIN AND SUFFERING. ors in this state depends upon the nature of should award compensation for the future pain

In an action for personal injuries, the jury the liability under the Montana statute, which and suffering when the probability thereof is esif penal, must be enforced in that jurisdic- tablished by the evidence. tion. The earlier cases in most jurisdictions

[Ed. Note.-For other cases, see Damages, regarded such statutes as penal, and suits Cent. Dig. $ 69; Dec. Dig. & 26.*] upon them as actions for penalties, but the 2. DAMAGES (8 34*)-PERSONAL INJURIES,

AGGRAVATION OF INJURY, later cases, especially those of the federal

A surgeon employed by a railroad company courts, which perhaps declare the sounder set the broken leg of a passenger in such a manview of the law, hold that the liability in ner as to make a second operation necessary. such cases is contractual in its nature, and whose skill a prudent person would have a

This operation was performed by a surgeon in such statutes remedial. The leading case de right to rely. Held, that the consequences fol. claratory of this doctrine is Huntington v. lowing such second operation are the result of Attrill, 146 U. S. 657, 13 Sup. Ct. 224, 36 L. the original accident, and it is immaterial that Ed. 1123. We have carefully considered this the second operation did not relieve the patient's

pain. case and the numerous other cases cited by

[Ed. Note.-For other cases, see Damages, the learned counsel for appellant, and we Cent. Dig. 43; Dec. Dig. & 34.*]


3. EVIDENCE (8 359*)—ADMISSIBILITY-RADIO-, these questions is relevant in the offer of

the picture, X-ray or radiograph, as it is Where the surgeon of a railroad set the broken leg of a passenger in such a way as "to termed, nor is it competent, and that its because the fibula to override, and a second opera-ing offered is for an improper purpose, and tion was necessary, the surgeon performing the only for the purpose, of inflaming the minds second operation could show by radiograph pic of the jury improperly. The Court: The tures the basis for his conclusion that the operation was necessary, and that on operating he surgeon is called upon to go before the jury found the conditions to be such as the picture and to use the radiograph in explaining the showed.

condition of the injured leg as found by him, [Ed. Note. For other cases, see Evidence, and I believe it would be proper to allow him Cent. Dig. $$ 1509, 1510; Dec. Dig. $ 359.*]

to do so, and we will permit the witness to Appeal from Court of Common Pleas, Law- do that. There is really no question before rence County.

the court to rule on. You may proceed, DocAction by Fred F. Wallace against the tor. Mr. Jackson: The court being of opinPennsylvania Railroad Company. Judgment ion that there is no question before the court for plaintiff, and defendant appeals. Af- to raise the question objected to, I now obfirmed.

ject to the witness showing this plate to the See, also, 219 Pa. 327, 68 Atl. 952.

jury because the plate has not been sufficient. At the trial when Dr. L W. Swope was only identified and has not in fact been offered the stand certain radiograph pictures were in evidence, and it is therefore incompetent shown to him, and he was asked this ques- for the witness to use it in illustrating, as tion:

there is no proof that it even pretends to be “Q. I will ask you, Doctor, to take Exhibit a picture of the plaintiff's injured limb. B to the jury. First, when this incision was The Court: We will overrule the objection made state whether or not the conditions that and seal' an exception for the defendant. you found there corresponded with the radio- | (Last question read witness.) A. Yes, sir, it graph ? A. It did. Mr. Jackson: I ask that did.” answer to be withdrawn until I make my The court charged in part as follows: objection. Mr. Aiken: We will consider it "In addition to compensation for expenses withdrawn. Mr. Jackson: What is the ques incurred and loss of earning power, you may tion for? Mr. Aiken: What do you say? I consider compensation for pain and suffering, am not saying. It is your duty to give the and in doing so you are not confined simply to purpose of the question. (Question read at what he has endured since the accident to suggestion of counsel. Defendant's counsel the present time, but what he will probably object, as it contains two separate and dis- suffer in the future as a sequence of the intinct questions and different subject-matters.) jury." We object to the witness going to the jury Plaintiff presented these points: and showing the jury the radiograph plate, "(7) In considering the damages you may because it has not been properly identified or award the plaintiff for pain and suffering shown by an expert to have been made so you will consider the pain and suffering he as to make it evidence for any purpose. It has already endured, bodily and mentally, is objected to for the second reason because a and which he is likely to endure, and it is radiograph plate, sometimes called X-ray, of for you to determine what compensation the wounded or injured parts of this man's under all the circumstances should be allowleg, for which suit is brought, is incompetent. ed the plaintiff, in addition to the other items and irrelevant evidence and should not be re- of damage to which he is entitled, in considceived for any purpose whatever as to any- eration of the pain and suffering as a result thing in issue in this case, and we desire the of the accident and what amount of money court to understand we make two distinct is sufficient compensation for pain and sufand specific objections to the offering of these fering is to be decided by the jury. Answer: radiographs to the jury, in that it has not Affirmed." been shown to have been taken in such a way "(4) That if the jury find that the operaor by such a person of such a profession, such tion of Dr. Swope caused dead bone, and that an expert, as would entitle it to be received this dead bone was not the sequence or reas evidence. Further objected to for the rea- sult of the original injury, they should not son that the radiograph and X-ray pictures take this dead bone into account in making of injured and deformed parts are not re-up their verdict. Answer: Refused. While ceivable in evidence on the trial of a case like it is true the plaintiff cannot recover for inthis; that there is nothing at issue in this juries which are not the sequence of the origcase except a question of damages for in- inal injury received in the accident, yet if he juries sustained, for costs and expenses that exercised care, caution, and good judgment in may have been incurred, for such damages the selection of a skillful and competent suras might properly be allowed for pain and geon, he has discharged his duty in this resuffering and for loss of earning power since spect and is not responsible for an error in the accident up to the present and if it judgment or unskillful treatment on the part should be beliered in the future. No one of l of the surgeon who has been selected with

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