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Brown et ux. v Pittsburgh Taxicab Co.

B. H. Dorsey, defendant's chauffeur, testified:

"Q. How close were you to Fifth Avenue crossing when you saw the truck coming?

A. I was about half way across the street. I imagine it may be not quite that much, when I saw the truck coming.

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Q. When you first noticed the truck, how far was it from your taxicab?
A. I can't just say.
Q. Would you say twenty feet away?
A. More than that. It was forty or fifty feet away."

J. W. Graham, garage and emergency man of the Reick Company, witness for defendant, testified that he was on the truck:

“Q. Your machine was going close to twenty miles an hour when it struck the taxi?

A. Yes, sir.”

William E. Culbert, a witness for defendant, employed at the Frick Building, Fifth Avenue and Grant Street, testified he saw the collision:

"I saw Reick's truck coming down Fifth Avenue. As it turned the bend (meaning the bend in Fifth Avenue near the jail), looked like she was going to a fire, and when she got to Wylie and Fifth Avenue, the taxicab came out of Grant Street and had got as far as the second rail.

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Q. Tell us what happened.
A.

This truck came down. She was coming at a terrific speed."

That the view out Fifth Avenue was clear and unobstructed appears in Culbert's testimony: *Q. You could see from that point, the lower end of the Frick Building

clear up to where on Fifth Avenue? A. As far as * around the bend by the rear of the Court House."

From the testimony quoted--and much other testimony-it is plain that had defendant's chauffeur kept his car well under control as he approached the Fiitth Avenue crossing--and looked and watched (with a high degree oi care for the safety of his passengers) for vehicles moving down Fifth Avenue, he would have seen the emergency truck coming at high speed down Fifth Avenue-would have seen it in time to prevent a collision and the injury to Mrs. Brown. That is the result of the jury's verdict on the submission to it of the issue of fact, whether defendant's chauffeur negligently caused or assisted in causing the collision and resultant personal injuries.

The credibility of the testimony-all oral-was for the jury: Lindeman v Rys. Co., 251 Pa. at p. 493, Rauch v Smedley, 208 Pa., 176; Simons v P. & R. Ry. Co., 254 Pa., 509; Flattery v Flattery, 88 Pa., 27.

It is well settled "that a presumption of negligence arises when an accident to a passenger occurs resulting from a defective means or appliance of transportation, or from a failure of performance of duty on the part of the company or its employes." Veibalski v Penna. R. R. Co., 249 Pa, at p. 534.

Believing that a fair trial was had and substantial justice reached, the motion for judgment n. 0. v. is refused.

Hammerle's Estate.

Wills-Register of Wills Orphans' Court--Jurisdiction-Time of Exe

cution---Appeal-Audit.

Where testatrix executed her will on November 19. 1918, directing

th will be dated October 17, 1918, which was done, and then died on November 20, 1918, the charitable bequests would be inoperative, the will not having been executed within 30 days of testatrix's death.

The Orphans' Court has no jurisdiction to determine the date of the execution of a will on appeal from a decree of the register and directing a new date to be made part of the probate. If the essentials to the probate of a valid will appeared, namely, execution according to statutory requirements, and the free act of one having a sound and disposing mind, memory and understanding, these are questions of fact proper for inquiry at probate. If these affirmatively appeared, the paper is entitled to probate.

When the date testatrix directed the scrivener to put in the will, which was clearly intentional, is not conclusive of the time when the will was actually made, this fact must be ascertaned at the audit, and not on an appeal from the decision of the register of wills. Then the construction of the will and the disposition of her estate are within the jurisdiction of the court, and it is for the court to determine the validity or invalidity of the will or certain provsions in it.

Appeal. No. 70 October Term, 1919. 0. C. Allegheny County.

Jno. O. Wicks, for Commonwealth of Pennsylvania.
N. R. Criss, for executor.
Herman Hegner, McKenna & UcKenna, for beneficiaries.
John P. Patterson, for residuary legatee.

VILLER, P. J., December 9, 1919.— The question is, the time testatrix executed her will, and the court's jurisdiction to determine the same at the audit of her estate.

The will in question is dated October 17, 1918; on its face it is attested as of that date by the two subscribing witnesses. By its terms she bequeathed legacies to various charitable institutions amounting to over $1,600.00; also some pecuniary legacies to individuals; hier residuary estate is devised in trust for her father's benefit; the personal estate for distribution is about one thousand dollars.

Sister M. Irmgard, one of the subscribing witnesses, testified, that she was at testatrix's home on November 19, 1918, remained with her from five in the evening until five the next morning, that during that period at about eleven o'clock at night testatrix executied the will in question, that she witnessed testatrix's signature, and that she and the other subscribing witness signed their names thereto that night.

Mary C. Manion, the other attesting witness, says that on the evening of the 19th of November, 1918, she was sent for to go to testatrix's home, where she found her very ill; that at her direction the witness wrote the will, antedated, as directed by testatrix, who sent the nun, Sister Irmgard, presumably, downstairs for a calendar, and upon examining it directed the witness "what date to insert in the will, which I did;" saying further that the will was executed and witnessed the day before testatrix died.

August Hammerle, father of testatrix, says, that on the evening or night of November 19, 1918, Miss Manion and Sister Iringard were at the home in testatrix's room; that he saw the ink stand and table ready for writing, that he asked what was being done, and she says something, to work for Anna

* but I was too much downhearted, I didn't question too much.” He fixes the date when the foregoing transaction took place and the death of his daughter the next day by his impressive recollection that

Hammerle's Estate.

his wife, the mother of his daughter, had died on the 20th of October, a month before.

From the foregoing testimony, uncontradicted, corroborated and credible, the fact is found that the will in question was prepared for, signed and published by, testatrix in the presence of the two attesting witnesses on the night of November 19, 1918, and that testatrix died the next day, November 20, 1918, at about 4:00 P. M.

The jurisdiction of the Orphans' Court, to inquire into the time of making the will is questioned, on the authority of Baum's Est., 260 Pa., 33. The question there decided was, that the Orphans' Court had no jurisdiction to determine the date of the execution of a will on appeal from a decree of the register and directing a new date to be made part of the probate which had been opened; the court saying that if the essentials to the probate of a valid will appeared, namely, execution according to statutory requirements, and the free act of one having a sound and disposing mind, memory and understanding, these being questions of fact proper for inquiry at prabate, that then, if these affirmatively appeared, the paper is entitled to probate, the court saying, “Let the contention that the testator made a mistake in the date of the will be admitted, how does such mistake affect the validity of the will? It was right here that the court below made the fatal error of failing to distinguish between invalidity and partial inoperativeness. However inoperative a will may be with respect to some of its provisions, if executed in accordance with the requirements of the statute, and the testator be of testamentary capacity, it is nevertheless a valid will."

Illustrations are then given, among others, “A testator by his will makes a charitable bequest but dies within a month following the execution of a will, and the will is not invalid for such reason, but is simply inoperative as to the charitable bequest, and even that is not a question for the register."

The opinion concludes, “The fears expressed by counsel that, except as this proceeding be available in such a controversy as this, the truth can never be inquired into and the end of justice attained, will all disappear upon a careful study of the cases we have cited in this opinion."

It will thus be seen that the Supreme Court in the Baum case draws a sharp distinction between the jurisdiction of the Orphans' Court in attempting to open the probate of a will and fix a date of execution as part of the probate on an appeal from probate of a will otherwise valid as to the essentials of probate; and its jurisdiction in construction of the will with the necessary inquiry into facts touching the operations of its provisions. Jurisdiction in the Bauin case was found not to be in the Orphans' Court on an appeal from the register where a will valid on its face was the subject of appeal, but does not deny the jurisdiction of this court to determine the construction and operation of the provisions of the will, necessarily carrying with it the ascertainment of facts not disclosed by the will and essential for its proper construction.

Among the cases referred to in the opinion in Baum's Estate are:

Haggerty's App., 75 Pa., 503, where the time of testator's death was in question in connection with the time of the execution of his will and the time of the probaie thereof, essentials necessary to determine the fact as to the inoperation of the devise to charity, the court, Sharswood, J., saying: “It is an undisputed fact that Samuel Haggerty, the testator, did die within one calendar month after the execution of his will. It was not indeed presented for probate until after the month from its date had expired, so that upon the face of the proceedings in the Register's Office, there was nothing to give notice to purchasers of the invalidity of the disposition to religious uses made in the will, which depends, therefore, entirely upon a fact dehors the will and the record of probate.” So in Broe v Boyle, 108 Pa., 76, the ques

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Hammerle's Estate.

tion of the operation of a will duly probated depended upon determining the fact, dehors the will, that at the time the will was made wherein she devised all her property to her sister, that she was single, afterwards was married, her husband dying, and she remained his widow until her death, that failure to raise these facts until five years after probate, precluded anyone from taking advantage of the fact of her subsequent marriage and the statutory revocation of her will; in other words, that the facts found, if within the statutory time, would have changed the disposition of her property, and that these facts would have been found dehors the will itself.” Again in Owens v Haines, 199 Pa., 137, the fact was found, dehors the will, that a child had been born after the date of the will and that it was entitled to its share notwithstanding the will duly probated was valid and had made other dispositions.

The date testatrix in the case at bar directed the scrivener to put in the will, which was clearly intentional, is not conclusive of the time when the will was actually made. The fact must be ascertained now at the audit, when and where the construction of the will and the disposition of her estate are within the jurisdiction of the court.

It follows that the bequests to the charitable institutions fall, testatrix having died within thirty days after the time she made this will.

Sam v Czepull.

Justices of the Peace--Certiorari and Appeals.

Where, pending an appeal from a judgment of a Justice of the Peace, the defendant also sues out writ of certiorari, on motion the writ of certiorari will be quashed. Defendant is not entitled to both an appeal and a certiorari.

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Certiorari. No. 763 August Term, 1919. c. P. Westmoreland County.

The defendant in error filed a motion to quash and assigned the following reasons therefor:

“1. The record returned by the said John B. Hagerman, J. P., to the said writ of certiorari shows that an appeal was taken by this defendant from the decision or judgment of the said Justice of the Peace and the appeal perfected by the payment of costs and entry of bail August 13, 1919.

2. That the appeal thus taken was filed in this Court August 19, 1919, at No. 766 August Term, 1919.

3. That the certiorari to bring up the record in this case was issued August 19, 1919.

4. That the defendant cannot have both an appeal and a certiorari to a Justice's judgment at one and the same time, and the appeal having been taken first and then filod in Court, the Court is asked to quash the certiorari.”

H. Clay Beistel, attorney for plaintiff in error.
B. R. Kline and John E. Kunkle, attorneys for defendant in error.

McCONNELL, P. J.—On the 13th of August, 1919, the defendant took an appeal and on the 19th of August filed the same in the Court of Common Pleas at No. 766 August Term, 1919, and the same is still pending. She also sued out the present certiorari. She is not entitled to both an appeal and a certiorari, and accordingly on motion, the writ of certiorari is quashed.

Nicoll's Appeal.

Mercantile Appraiser's Tax-Broker-Sales Agent-Liability-Appeal.

A sales agent, who could not have maintained an action in his own name, was held not liable for the mercantile license tax as a broker, where the agreement with the seller granted a sole and exclusive agency for the sale of all coal produced and fixed his compensation, but the seller not only fixed the price, but consigned the coal directly to the purchaser. He had nothing to do with fixing the selling price nor was the title of the coal ever vested in him. His liability was not primary but secondary.

A jobber was not liable for a mercantile license tax where the evidence showed that of the gross amount of business transacted and upon which the assessment of tax was made, was derived from business carried on with residents of foreign states and was therefore inter-tate business which is not subject to tax by the Commonwealth of Pennsylvania.

An agent for the sale of coal who was not a wholesale vendor or dealer within the meaning of the Act of May 2, 1899, P. L. 184, under which the assessment was made was not liable for the license tax.

Appeal. No. 1435 October Term, 1919. C. P. Allegheny County.

Horace F. Baker and Sidney J. Watt, for petitioners.
Ralph C. Davis and F. A. Piekarski, for Commonwealth.

WASSON, J., December 10, 1919.—On July 11, 1919, the Mercantile Appraiser of Allegheny County notified Benjamin Nicoll, trading as B. Nicoll & Company, that he had been rated and assessed as a wholesale dealer and that upon payment of Forty-five Hundred and Four Dollars, which was then due and payable, a license would be granted to him for the period ending May 1, 1920. An appeal was promptly taken, as provided by law, and on the 28th day of August, 1919, the Mercantile Appraiser and the County Treasurer fixed the aniount of license tax at $3,403.83. From his assessment the appeal before us was taken.

The license tax in controversy was assessed pursuant to Section 1 of the Act of May 2, 1899 P. L. 184, which provides “Each wholesale veuidor of or wholesale dealer in goods, wares and merchandise shall pay an annual mercantile license tax of Three Dollars and all persons so engaged shall pay one-half mill additional on each dollar of the whole volume gross of business transacted annually" and was based on the volume of business transacted during the calendar year 1918 amounting to $6,799,618.08. The greater part of this volume of business or $6,193,168.00, came from the sale of coal, under and by virtue of an agreement between the appellant and the Pittsburgh Terminal Railroad and Coal Company; $338,778.48 came from the sale of coal under an agreement with the Union Colleries Company; $6,975.61 came from the sale of coal under an agreement with the Four States Coal Company and $260,703.28 was the aggregate of commissions from the sale of coal under the regulations of the United States Fuel Administration.

The agreement with the Pittsburgh Terminal Railroad and Coal Company, dated the 30th day of April, 1913, grants to the appellant the sole and exclusive agency for the sale of all coal produced and provides, inter alia, that all coal shall be sold at the best obtainable price, not less, however, than such as shall be fixed from time to time by the Coal Company and fixes his compensation at five cents per ton on all coal sold. The Company not only fixed the price but consigned the coal directly to the purchaser; the appellant had nothing to do with fixing the selling price nor was the title of the coal ever vested in him. It is true he guaranteed the payment of accounts, but his liability was secondary and not primary. For a recovery on default in payment he could not have maintained an action

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