Barnes Laundry Company v City of Pittsburgh et al.

gating to any special commission the power to perform any municipal function we deem it unnecessary that we express an opinion. Counsel for plaintiff will contend it is not: first, because, they say, the public service commission is not a "special commission" and, second, because the function exercised is not governmental but proprietary. On the other hand it doubtless will be contended that the Commission is limited in its jurisdiction, and that in exercising the powers conferred, it is, to all intents and purposes, exercising the functions of a "special commission;" that the legislature has so blended the fixing of water rates and the rate of taxation, making the exercise of the former a pre-requisite to the determination of the latter, that one cannot be held to be proprietary and the other governmental. And finally, that the legislature having omitted municipal corporations, when defining the term "Public Service Company" and declared that the term "corporation" did not include municipal corporations, except where otherwise specially provided, and that property owned by a municipality should not be subject to the Commission, except as provided; it would be a violation of the settled rules of construction to hold that the power which plaintiff's counsel contend for, can be read into the Act.

Our conclusion is that the Public Service Company Law does not confer jurisdiction upon the Commission to fix water rates or rents in, or for, the City of Pittsburgh.

This conclusion has been approved by the Supreme Court, opinion by Mr. Justice Moschzisker at 68 P. L. J. 113.

For another opinion on the same series of cases see Mutual Laundry Co. v City of Pittsburgh, 67 P. L. J. 113.

Attachment

Foster et al., etc., v Mellon National Bank, Garnishee.

Garnishee—Title-Question for the Jury-New Trial.

At the trial of an issue on an attachment, it was a question of fact for the jury to determine whether or not, under all the evidence as to the custom, course of dealing or understanding, if any, the title to a draft passed to the plaintiff bank which had collected the amount and had been summoned as garnishee, or remained in the drawees. The jury having found in favor of the attaching creditor, motion for new trial was refused.

Motion for New Trial and for Judgment N. O. V. No. 51 July Term, 1918. C. P. Allegheny County.

Weil & Thorn, for plaintiff.

Moorhead & Knox, for defendant.

Before BROWN, MACFARLANE and SWEARINGEN, JJ.

SWEARINGEN, J., December 5, 1919.-The Mellon National Bank of Pittsburgh is but the nominal defendant in this case. It holds $2,707.23, which it collected for the Lowry National Bank of Atlanta, Georgia, and which has been attached by L. B. Foster & Co., as in fact belonging to the Southern Iron & Equipment Company of Georgia. Of course, the Mellon Bank has no interest in the controversy beyond discharging its duty to its principal by interposing the proper defense on the latter's behalf.

At No. 2044 October Term, 1917, of this Court, L. B. Foster & Co., obtained a judgment against the Southtern Iron & Equipment Company of

Foster et al., etc., v Mellon National Bank, Garnishee.

Georgia in the sum of $27,712.86.

Early in September of 1917, the Equipment Company shipped a consignment of goods to L. B. Foster & Co., which the latter had purchased from the former for cash. September 8, 1917, the Equipment Company drew its sight draft for the value of the goods, to wit, $2,707.23, upon L. B. Foster & Co., in favor of the Lowry Bank, attached the Bill of Lading thereto and deposited the draft and bill with the Lowry Bank, which forwarded the same to the Mellon Bank for collection. L. B. Foster & Co. paid the draft to the Mellon Bank and obtained their goods. They then attached the proceeds of the draft in the hands of the latter bank. In response to interrogatories filed, the Mellon Bank answered denying that it had any property in its hands belonging to the Equipment Company; and the case went to trial on the plea of nulla bona. The jury rendered a verdict against the Mellon Bank, thereby finding that the title to the draft, which was forwarded to the Mellon Bank, was in the Southern Iron & Equipment Co. and not in the Lowry National Bank of Georgia; and that was the real issue for trial.

We cannot agree with the defendant's counsel that, under the testimony, "a conclusive presumption arises that the title to the draft passed to the Lowry National Bank of Georgia." As we read the authorities, the rule is that the presumption is but prima facie, and "this general rule will yield to the intention of the parties as reflected in the transaction." Bank of Webb City v Everett, 136 Ga., 373.

"It is a question of fact for the jury to determine whether or not, under all the evidence as to the custom, course of dealing or understanding, if any, the title to the draft passed to the plaintiff bank or remained in the drawees * *"

Baldwin State Bank v Nat. Bank of Georgia, 144 Ga., 182.

Assuming that the rule is as we have stated, L. B. Foster & Co., undertook to prove such a state of facts as would warrant the jury in finding that the draft was deposited with the Lowry Bank for collection only, and they relied upon the following:

1st. The draft was entered for collection for account of the Southern Iron & Equipment Co., in the Foreign Cash Collection Ledger of the Lowry Bank.

2nd. The officers of the Lowry Bank failed to produce their own collection account, which would have shown that this item thereon had been purchased for its account.

3rd. The Lowry Bank required the Equipment Company to pay the draft in cash, after the attachment had issued, which was done in this way: The Equipment Company made a cash deposit of $2,707.23 and the Lowry Bank then issued to the Equipment Company a Certificate of Deposit for this amount, which the Equipment Company immediately handed back to the bank.

4th. It was not disputed that the Equipment Company paid interest to the Lowry Bank upon the face of the draft until the Equipment Company paid the draft and obtained the Certificate of Deposit, and that no interest has since been paid thereon.

In view of the foregoing, we cannot perceive how the question of the ownership of the draft could have been taken from the jury. Neither can we understand why that evidence was not sufficient to overcome the prima facie case in favor of the Lowry National Bank, which was submitted by the defendant.

If the draft had been purchased by the Lowry Bank, as was alleged by the defendant, it surely would not have been charged on the Foreign Cash Collection Ledger to the account of the Equipment Company, but

Foster et al., etc., v Mellon National Bank, Garnishee.

would have been charged to the account of the bank itself. If the Lowry Bank had been the purchaser of the draft and the title had passed to the bank out of the Equipment Company, thereafter the Equipment Company would have had no further interest and from that moment it would not have appeared in the Equipment Company's account.

It was argued, and the argument was a fair one, that the Lowry Bank has been paid the amount of the draft in full, because by depositing the exact amount of the draft in the Lowry Bank and then its issuing to the Equipment Company a Certificate of Deposit, which was immediately returned to the bank, the money deposited was at once released to the use of the bank and no interest was ever paid on account of the Certificate of Deposit.

Furthermore, if the Lowry Bank had been the purchaser of the draft, it could not have demanded and received interest upon its own property until the Equipment Company paid the draft. Such a course of procedure was contradictory of the ownership claimed by the Lowry Bank.

It is therefore apparent that the question of the ownership of this draft was one which had to be left to the jury. We can perceive no reason why we should set aside the verdict which the jury has found. That verdict is sustained, in our opinion, by ample evidence.

Counsel for the defendant has argued that the Lowry Bank made advances upon the draft to the full amount thereof and thereby acquired a lien upon the draft and its proceeds. The principle upon which the defendant relies is well understood. But how can it be applied in this case? The Lowry Bank does not have possession of either the draft or the proceeds, and possession is necessary to constitute a common law lien. Besides the jury has found that the Equipment Company paid the draft about October 8, 1917. In consequence, the Lowry Bank cannot claim payment twice, particularly as against L. B. Porter & Co., which has no security except the proceeds of the draft in the hands of the Mellon Bank.

We are not convinced that any material error was committed in the trial of the cause. Consequently, the motion for a new trial cannot be sustained.

American Photo Player Co. v Bluestone.

Tudgments-Opening-Lease

Fact.

Photo Player-Averments

-Questions of

A judgment confessed on a lease for a photo player was opened where in his petition defendant alleged that the plaintiff agreed to furnish with the instrument 100 rolls, free of charge, at the time of installation, but he failed to do so and the defendant was compelled to pay $150.00; that there was to be a credit of $500.00 for a used piano; that while the used piano was not furnished by the defendant, yet it was understood that that was merely nominal in the lease and it was never understood that any used piano would be furnished and this was practically admitted in the depositions taken by the agent of the plaintiff, who made the contract. These items raised a question of fact which should take the case to a jury.

Allegations on the part of the defendant in his petition, such as the fact that he has lost in business by reason of this instrument not having worked in accordance with the representations of the plaintiff, but if that were a fact he could have rescinded his lease at any time and protected his business by putting in a proper instrument, was no ground for opening a judgment confessed on a lease.

Rule to Open Judgment. No. 542 January Term, 1919, D. S. B. C. P. Allegheny County.

Stonecipher & Ralston, for plaintiff.

J. F. McNaul, for defendant.

EVANS, J., November 28, 1919.-The plaintiff leased, by articles of agreement, a musical instrument (known as a Photo Player), for a blank term, at a rental of $5,000.00, payable $250.00 on the execution of the agreement, receipt whereof is acknowledged, and the remainder as follows: $500.00 credit allowance for a used piano, $100.00 monthly each and every month for three months, $150.00 monthly for the next three months, $175.00 monthly for the next twelve months, $234.00 monthly for the next five months and the further monthly payment of $230.00, with an agreement that in case default be made by Lessee in keeping and performing any of the terms, conditions and covenants therein, then, at the option of the Lessor, this lease shall forthwith cease and determine, and it shall be lawful for Lessor to enter the premises where the instrument is kept and repossess same; and it shall be lawful, at the option of the Lessor, to file this lease, or a copy of same, in any Court, together with an affidavit of default, and to enter in such Court such amicable action as may be best adapted for the recovery of said instrument without security or bond given, and any attorney is hereby authorized to sign said amicable action for Lessee, and also to appear and confess judgment against Lessee in said action; and the further provision that in case default be made in the payment of any installment of rent under this lease, for the space of five (5) days after the same shall fall due, or in the event of any levy or execution upon the Lessor's property, in case of bankruptcy or insolvency by the Lessor or Lessee, the Lessee empowers any attorney of any Court in Pennsylvania or elsewhere, to appear for Lessee and enter judgment against Lessee for the full amount of rent with all interest due and unpaid, with or without declaration or statement of claim with costs of suit, without stay of execution, or release of all

errors, etc.

The Lessor recovered possession of the instrument leased and entered a judgment for $2,133.69, the balance due and unpaid at the time of the recovery of the instrument. The defendant presented his petition, praying that the judgment be opened and he be allowed to defend, alleging that he had depended solely upon the representations of the agent of the plaintiff as to the workings of the instrument and that the musical instrument did

American Photo Player Co. v Bluestone.

not perform the work that it was intended to do; that it was defective in material, design and workmanship in all of its fundamental parts; that the plaintiff had agreed to furnish a skilled man to operate the instrument without expense to the defendant for a period of three months after the installation and the plaintiff did furnish the man but the defendant was compelled to pay him $20.00 per week for twelve weeks; and further that this instrument was unknown in Pittsburgh and that no other one had been installed here and that the plaintiff had agreed to have in the City of Pittsburgh a skilled mechanic who would be on call at all times to repair and maintain in running order the said instrument, but that this was not done. There are many other allegations on the part of the defendant in his petition, such as the fact that he has lost in business by reason of this instrument not having worked in accordance with the representations of the plaintiff, but if that were a fact he could have rescinded his lease at any time and protected his business by putting in a proper instrument and we do not see that that is grounds for opening a judgment.

There is one other item which the defendant alleges; that the plaintiff agreed to furnish with this instrument 100 rolls, free of charge, at the time of installation, but he failed to do so and the defendant was compelled to pay $150.00; that there was to be a credit of $500.00 for a used piano; that while the used piano was not furnished by the defendant, yet it was understood that that was merely nominal in the lease and it was never understood that any used piano would be furnished and this is practically admitted in the depositions taken by the agent of the plaintiff, who made the contract.

These items which we have mentioned have raised a question of fact and which we think should take this case to the jury. Depositions were taken, and while all the claims of the defendant are denied by the witnesses produced by the plaintiff, yet as stated before, there is a question of fact raised which the defendant is entitled to have a jury pass upon.

Brown et ux. v Pittsburgh Taxicab Co.

Negligence Taxicab-Collision With Truck- -Failure to Look and Watch.

Plaintiff, a passenger in one of defendant's taxicabs, was injured by a collision with a rapidly moving truck, and recovered a verdict where the evidence showed that the collision could have been avoided had defendant's chauffeur had his car under control and looked and watched for approaching vehicles.

Motion Ex Parte Defendant for Judgment N. O. V. No. 1819 October Term, 1918. C. P. Allegheny County.

Morris, Walker & Boyle, for plaintiffs.
Rose & Eichenauer, for defendant.

BROWN, J., January 12, 1920.-Defendant moves for judgment non obstante veredicto.

On the morning of September 6, 1917, Mr. and Mrs. Brown were passengers of the Pittsburgh Taxicab Company, for transportation from the Union Station of the Pennsylvania Railroad Company to the station of the Baltimore & Ohio Railroad Company, in the City of Pittsburgh; and, in the course of transportation, at the intersection of Fifth Avenue and Grant Street, a collision occurred between the taxicab driven by the taxicab chauffeur and a truck driven by a chauffeur of the Edward E. Reick Company-resulting in serious injuries to Mrs. Brown.