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Sebastine v Haney.

-Loca

Negligence -Motor Truck -Passing Team Going in Same Direction

tion of Horses-Jury Amount of Verdict.

Where plaintiff sued to recover the value of a horse with consequent loss alleged to have been injured by defendant's truck in passing plaintiff's team. the court refused to set aside a verdict on conflicting evidence. This was a question for the jury.

The driver of a truck would be liable in damages for injuries caused by colliding with plaintiff's team in passing it going in the same direction The exact location of the team on the road would not be very material.

Where the lowest value put upon a horse by plaintiff's witnesses in an action to recover damages was $300 and the highest value of the same horse by defendant's witnesses was $100, and the jury returned a verdict for plaintiff for $288, the court could not fix a different figure. Such a finding would be a mere guess or "splitting of differences,” unsupported by evidence.

Sur Motions for a New Trial and Judgmennt for Defendant N. O. V. No. 290 April Term, 1918. C. P. Allegheny County,

M. L. Thompson and Joseph W. W'alters, for plaintiff.
Alex. S. Mabon, for defendant.

. HAYMAKER, J., December 31, 1919.—This action in trespass was brought to recover the value of a horse, the amount of money expended in an effort to effect a cure, and amount paid for mending harness.

The plaintiff claimed that the accident happened on October 20th, 1917, at 3:30 P. M.; that he was then driving a two horse team, westerly along the Frankstown Road, attached to a coal wagon containing 118 bushels of coal; that the defendant was traveling along the same road and in the same direction, driving a one-ton motor coal truck, and that defendant, in passing plaintiff's team on the left side, negligently struck his lead mare on the left shoulder with the cross bar of the truck, thereby injuring her to the extent that she later became useless. The plaintiff, his son, and one Grogan testified to the fact of collision. The defendant alone testified that he did not strike the plaintiff's horse, in the following expressions: "Not that I know of;" "the indications are I didn't touch him;" "I would have felt it on the run of the machine;" and "I don't think I hit him.”

The plaintiff contended that he was on the right side of the road, while the defendant claimed that he, the plaintiff, was more in the middle and did not leave him, the defendant, sufficient room to pass on the left side. We do not regard the, location of the plaintiff's team on the road as very material, as the defendant would have no right to strike the plaintiff's horse even if he were over on the wrong side of the highway. Whether the defendant inflicted the injuries under the circumstances related by the plaintiff was a pure question of fact for the jury, and it certainly cannot be said that the evidence did not preponderate in favor of the plaintiff. The jury saw fit to adopt the plaintiff's account of the accident, corroborated by his two witnesses, as against that of the defendant, uncorroborated, except by circumstances relating to the condition and use of the horse after the date of the accident. True, the plaintiff exaggerated the condition of his horse, and minimized the amount of work it was able to do following the date of injury, but that evidence was not given to swell the plaintiff's damages, as he made no claim for loss of services of the horse, but in proof that the accident actually happened, and that thereafter it became utterly useless. Under the facts we could not have affirmed defendant's second point for binding instructions in his favor, and therefore cannot now enter judgment in his favor non obstante veredicto.

Sebastine v Haney.

The defendant claims that the verdict was grossly excessive. The plaintiff presented three items of claim: the fair market value of the horse, the cost of the repair of his harness, and the money expended in an effort to effect a cure of his horse. The last two items were not questioned by the defense, and they aggregate $42. Three witnesses fix the value of the horse at from $300 to $400, while two witnesses called by the defense fix it at from $75 to $100. Assuming that the jury allowed the plaintiff the cost of repairing his harness, or $12, and the amount spent in trying to cure the horse, or $30, neither of which was disputed, we find the jury allowed the plaintiff $288 as the price of his horse. The lowest estimate placed on the market value of the horse by any witness called by the plaintiff was $300, and the highest value fixed by any witness called by the defense was $100. While we might feel that the true value of the horse was somewhere between these amounts fixed by the contending parties, upon what basis could we determine the amount? How can we say that both were wrong? Were we to fix an amount somewhere between the lowest estimate stated by the plaintiff and the highest estimate fixed by the defendant, we would be doing so without any evidence in support of our conclusion. It would be a mere guess, or a “splitting of the differences," unsupported by evidence.

We believe the case was fairly submitted to the jury, and we see no legal reason for interfering with the result. Both motions, therefore, are refused and overruled.

Parker et al. v Parker et al.

Joinder of PartiesPractice Exceptions to Report of Referee.

When it appears that the rights of several plaintiffs in the subject matter of a suit is several, and not joint, and the defendant sees fit to take defense and go to trial on the merits without objection to the joinder, he is too late to raise the question at the conclusion of the trial. The referee properly refused a request to hold that the suit had not been well brought for that reason.

No. 200 June Term, 1919.

C. P.

Ex tions to Report of Referee. Lackawanna County.

A. A. Vosburg and A. D. Dean, for plaintiffs.
G. L. Peck, for defendants.

NEWCOMB, J., December 4, 1919.–We haven't the benefit of any argument of counsel as the case was submitted on the papers. As the issue was made up it would seem to have been well tried. It cannot escape notice, however, that the rights of the various plaintiffs in the subject matter of the suit were several, and not joint. But defendants saw fit to take defense and go to trial on the merits without objection to the joinder. True, at the conclusion of the trial the referee was asked to hold that suit had not been well brought for that reason. The referee held it was then too late to raise the question and it is believed to have been properly so held.

On the merits the only question was one of law as to the respective shares of the plaintiffs in the rents, issues and net profits of certain lands to which they succeeded in title under the intestate law upon the death of their ancestor. We see no error in the decision of the referee and the exceptions are therefore overruled and the report is confirmed.

Lincoln v National Tube Company.

Negligence -Minors -Hoisting Machinery, -Crane -Illegal Contracts

Acts of May 15, 1915, P. L. 286, and of June 2, 1915, P. I.. 736.

Defendant was liable in damages for injuries received by a minor under 18 years of age while operating a crane used in raising, lowering and transporting pipe, scrap and other material. Such work was prohibited by the Act of May 15 1915, P. L. 286, which declares that no minor under 18 years of age shall be employed or permitted to work in the operation or management of hoisting machines.

The Workmen's Compensation Act of June 2, 1915, P. L. 736, applies solely to persons lawfully employed. If not by express words, by strong implication it excludes minors whose employment is prohibited by law. The prohibitive provision as to minors—in the Act of May 13, 1915—bars any contractual or other legal relations between minors and employers. It is plain that contracts of employment within the scope of the Workmen's Compensation Act must be such as recognized by and not in violation of law so that a minor under 18 may recover an action at law for personal injuries and not by proceedings under the Workmen's Compensation Act.

Motion Ex Parte Defendant-(a) for Judgment N. O. V. and (b) for a New Trial. No. 1508 January Term, 1919. C. P. Allegheny County.

H. Fred Mercer, for plaintiff.
Reed, Smith, Shaw & Beal, for defendant.

BROWN, J., January 12, 1920.–Defendant moves (a) for judgment non obstante veredicto, and (b) for a new trial.

The action was brought to recover damages resulting to mother and son from serious spinal injuries to the son-a minor under the age of eighteen—while operating a crane for the defendant-a crane used in raising, lowering and transporting pipe, scrap and other material.

The verdict for the mother was $1,000, and the verdict for the son, $5,500—not excessive, but very moderate.

Defendant's contention at the trial was (a) that the crane was not a hoisting machine within the meaning of Section 5 of the Act of May 13, 1915, P. L. 286, and (b) that plaintiff's remedy for compensation was not by an action at law but by proceedings under the Workmen's Compensation Act of June 2, 1915, P. L. 736. This contention (a and b) is not well founded.

Section 5 of the Act of May 15, 1915, P. L. 286, declares that:

“No minor under eighteen years of age shall be employed or permitted to work in the operation or management of hoisting machines.”

That Act was followed by the Workmen's Compensation Act of June 2, 1915, P. L. 736, which applies solely to persons lawfullyi employed. If not by express words, by strong implication it excludes minors whose employment is prohibited by law. The prohibitive provision as to minorsin the quoted 5th section of the Act of May 13, 1915—bars any contractual or other legal relations between minors and employers.

A contractual relation between minor and employer must be based in a lawful consideration, and not in any violation of prohibitive statutory rules. That being true, it is plain that contracts of employment within the scope of the Workmen's Compensation Act must be such as recognized by and not in violation of law.

Article III, Sec. 302 (a) of the Compensation Act reads:

“In every contract of hiring made after December thirty-first, one thousand nine hundred and fifteen, and in every contract of hiring renewed or extended by mutual consent, expressed or implied, after that date *

The conclusion thus reached is supported by the ruling of this Court: Sweeney et al. v The Fishel Company, 66 P. L. J., 448, and Ayres et al. v John Dunlap Co., 27 D. R., 552—and by numerous decisions of courts of last resort in other jurisdictions. Acklin Stamping Co. v Kutz (Supreme

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Lincoln v National Tube Company.

Court of Ohio), 120 N. E., 229, and Sechlich v Harris-Emery Co. (Iowa), 169 N. W., 325. In this latter case the Court said: "Nor can the fact

that the girl falsely or mistakenly stated her age in taking the employment, serve as a defense to this action. The prohibition declared by the statute is absolute and unconditional, and one who employs a young person to perform a service thus regulated or forbidden cannot be heard to say in excuse that he was misinformed as to the employe's age, or that he was deceived by the apparent maturity of the person employed. To hold otherwise would be to open the door to wholesale violation of the statute. The adoption of such a rule would be in effect to amend the statute by reading into it the word knowingly, or other equivalent expression."

In Westerlund v Kettle River Co., 162 N. W., 680, the Supreme Court of Minnesota, said:

"The section of the compensation statute referred to provides that the term "employee' shall include, among others, ‘minors who are legally permitted to work under the laws of the State.' We are satisfied that this language will permit of no construction other than as stated in Pattee v Noyes, 133 Minn. 109, 157 N. W., 995, namely, that the legislature intended thereby to exclude from the Act minors whose employment is prohibited by law."

New trial refused.
Judgment n. 0. v. refused.

In re Stock Transfers.

Taration Capital Stock

1915, P. L. 828.

Corporation

Legal Title-Act of June 4,

The Act of June 4, 1915, P. L. 828, imposes a tax on the transfer of shares of the capital stock of a corporation even though it may invest the holder with merely the legal title.

OFFICE OF THE ATTORNEY GENERAL,

Harrisburg, Pa.

December 31, 1919.

Honorable J. Lord Rigby,
Chief, Bureau of Corporations,
Auditor General's Department,

Harrisburg, Pa.

Sir:

Some time ago you asked this department whether stamps were properly affixed to transfers of stock made by the Executor of the Estate of Matilda DeWitt, deceased. The facts, I understand, to be as follows:

Matilda DeWitt died in 1909, leaving a will by which she bequeathed a residuary estate consisting of seventy-five shares of preferred and twentyseven shares of the common stock of Hoffman. DeWitt & McDonough Company. This stock was bequeathed to Mrs. DeWitt by her husband, who died in 1908. This company was declared insolvent and a receiver appointed for it in 1908. The receivership was terminated June 30, 1917.

In re Stock Transfers.

as

After the receivership was terminated, the Pennsylvania Company for Insurance on Lives and Granting Annuities, the executor under the will of Emanuel DeWitt, the husband of Matilda DeWitt, filed its account, and, under an adjudication by the Orphans' Court of Montgomery County, this stock was transferred to Samuel Englander, executor under the will of Matilda De Witt. Mr. Englander filed his account executor in the Orphans' Court of Philadelphia County March 31, 1919. There was some contest in the estate of Matilda DeWitt, and the stock in question was transferred by Samuel Englander, executor, to Herman G. Storm, voting trustee, under an agreement executed by all of the residuary legatees under the will of Matilda DeWitt. This transfer was made July 7, 1919. The executor affixed stock transfer stamps to the amount of $14.00 on the preferred stock, and $6.40 on the common stock, and also affixed United States Internal Revenue Stamps thereon. Counsel for the executor claims that these transfers are not subject to the stamp taxes, inasmuch as Matilda DeWitt died in 1909, before the passage of the Transfer Stamp Tax Act. I cannot agree with that contention.

The Act of June 4, 1915, P. L. 828, imposing this tax, provides:

“That a State tax of two cents on each one hundred dollars of the face value, or fraction thereof, is hereby imposed on all * * deliveries or transfers of shares or certificates of stock in any domestic or foreign corporation * made on or after the date when this Act takes effect, whether made upon or shown by the books of the corporation, co-partnership association, or joint-stock company, or by any assignment in blank, or by any delivery:

and whether investing the holder with the beneficial interest in or legal title to said stock merely, with the possession or use thereof for any purpose."

This Act of Assembly imposes a tax on the transfer even though it may invest the holder with merely the legal title. The transfer by the executor to Herman G. Storm, voting trustee, was made in 1919, and invested Storm with the legal title to the stock for the purpose of voting the same.

The Treasury Department of the United States, by Treasury Decision No. 2752, dated August 14, 1918, has determined that under the Act of Congress the tax applies to the transfer of stock to or from voting trustees.

In my opinion, therefor, this transfer was directly within the terms of the Act, and the stamps were properly affixed.

I return herewith the correspondence submitted by you.

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Very truly yours,

WILLIAM M. HARGEST,

Deputy Attorney General.

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