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cessor within thirty days after the filing of the present petition, upon the ground that thereby the board may properly be deemed to have received certain official knowledge of a resignation.
Lyda v Hum Leatherman, Inc., a Corporation.
Negligence -Master and Servant
Act of 1915.
The Common Pleas had no jurisdiction in an action for personal injuries where the defendant, in accordance with the terms in a contract, furnished the plaintiff with an automobile and driver, said driver being employed by the defendant corporation. That the defendant's employee, during the course of his employment, operated the automobile in such a negligent manner that the plaintiff was injured. In such
the Workmen's Compensation Act af 1915 applied.
Demurrer. No. 33 January Term, 1920. C. P. Allegheny County.
Prichard & Trent, for plaintiffs.
Before KLINE, SHAFER and Cohen, JJ.
KLINE, J., December 23, 1919.–And now, to wit, this 22nd day of December, 1919, this case comes on to be heard upon statutory demurrer raised in the defendant's affidavit of defense. It appears from the narr that the plaintiff in this case was under contract with the defendant corporation to sell lightning rods on commission, and it was further agreed in the contract that the defendant corporation would furnish from time to time, when required by the plaintiff, proper means of conveyance for plaintiff to his various customers and prospective customers.
That the defendant, in accordance with the terms in the contract, furnished the plaintiff with an automobile and driver, said driver being employed by the defendant corporation. That the defendant's employee, during the course of his employment, operated the automobile in such a negligent manner that the plaintiff was injured.
After a careful consideration of the above facts and after argument by counsel, we are of the opinion that the Court has no jurisdiction, in that the plaintiff and the operator of the automobile were both servants of the defendant corporation. The question of master and servant is present and is a matter solely to be redressed under the provisions of the Workmen's Compensation Act of 1915.
Rhodes v Terheyden et al., Executor.
Bills and Notes—Endorsers
-Executor as Party Defendant.
An accommodation endorser of a promissory, who paid the note after its dishonor, cannot maintain a joint action against the other parties to the note, neither can he maintain a joint action against an individual and an executor of a deceased endorser, nor can a dissolved partnership be joined as a party defendant. Demurrer to statement sustained.
Affidavits of Defense.' No. 937 January Term, 1920. C. P. Allegheny County.
Seymour, Patterson & Siebeneck, for plaintiff.
McIlvain, Murphy & Mohn, John C. Bane and Chas. A. Woods, for defendants.
Before FORD, STONE and MACFARLANE, JJ.
MACFARLANE, J., December 24, 1919.-Fickeisen, Terheyden and Fickeisen, Executor, filed separate affidavits of defense raising questions of law that the statement does not disclose any joint liability and is insufficient to sustain a verdict and judgment. We are all agreed that the question of law should be determined in favor of the defendants.
The statement as amended is that the plaintiff was an accommodation, endorser of a note made by Wh ey to the order of Stuart H. Robinson, who endorsed the same for accommodation, and it was then endorsed by Fickeisen and next by Rhodes and then by Whitney and Fickeisen, Trustees. That it was dishonored by non-payment, of which the plaintiff had notice, and he paid it. That Whitney, since deceased, Fickeisen and Terheyden were partiers under the name of Whitney and Fickeisen, Trustees. That the intent of the parties in making and receiving said accommodation paper was for the benefit of the said Terheyden, Fickeisen and Whitney, and that they received the paper from Whitney without consideration in conformity with the original intent.
There is no joint liability and the parties to the note are not liable in one action; Wolf v Hostetter, 183 Pa., 292. It is also well settled that an action cannot be maintained against an individual and an executor jointly. Neither is the suit properly brought against the dissolved partner-, ship.
This is in effect a demurrer, and the dismissal of plaintiff's action will be without prejudice.
In re Immoral Pictures.
State Board of Censors—Approval ProsecutionConflict in Authority
Acts of 1911 and 1915.
There nothing in the Act of May 15, 1915, P. L. 534, relating to censoring of moving pictures, to prevent a criminal prosecution for showing an immoral picture under the Act of April 13, 1911, P. L. 64.
OFFICE OF THE ATTORNEY GENERAL,
February 4, 1920.
Dr. Ellis P. Oberholtzer,
Your letter of January 29th, 1920, asking to be advised as to whether the Act of April 13, 1911, P. L. 64, regulating amusements, was repealed so far as moving pictures are concerned by the Act of May 15, 1915, P. L. 534, was duly received.
In reply would say that Section 1 of the Act of April 13, 1911, P. L. 64, provides as follows:
"That it shall be unlawful for any person or persons to give or participate in, or for the owner or owners of any building, tent, tents, or any premises, lot, park, or common, or any one having control thereof, to permit within the said building, tent, or tents, or any premises, lot, park, or common, any dramatic, theatrical, operatic, or vaudeville exhibition, or the exhibitions of any fixed or moving pictures, of a lascivious, sacrilegious, obscene, indecent, or of an immoral nature and character, or such as might tend to corrupt morals."
This is the Act regulating all kinds of public exhibition and amusements, including moving pictures, and providing for a criminal prosecution for showing immoral shows. It does not conflict in any way with the Act of May 15, 1915, P. L. 534, establishing the Pennsylvania State Board of Censors, and giving them the power to censor moving pictures. Further, the same Legislature in 1911, by the Act of June 19, 1911, P. L. 1067, which was the first Act in this State establishing a Board of Censors of Moving Pictures, showed its intention that both Acts were to be enforced. In case a picture has been approved by the Pennsylvania State Board of Censors, it would certainly raise a presumption that the same was not an immoral picture, but I do not think that the two Acts are inconsistent, or the latter Act would repeal by implication the Act of April 13, 1911.
You are therefore advised that there is nothing in the Act of May 15, 1915, P. L. 534, to prevent a criminal prosecution for showing an immoral picture under the Act of April 13, 1911, P. L. 64.
Very truly yours,
Deputy Attorney General.
Anderson et al. v Amalgamated Assn., Etc., et al.
Pleadings---Act of June 16, 1836, P. L. 784.
Where plaintiff fled a bill against a labor union for loss sustained by reason of a street ear strike, it was held that a court of equity had no jurisdiction in that the strike was history when the bill was filed, and in the absence of any averment that defendants threatened to renew it or that plaintiff had reason to apprehend a renewal, a decree directing that an injunction issue would be but "brutum fulmen" and the plaintiff in attempting to enforce it would "fight as one that beateth the air."
Where jurisdiction is statutory, it is indispensable that the jurisdictional facts be specifically pleaded.
The General Equity Act of June 16, 1836, P. L. 784, empowers the Court to supervise and control corporations and incorporated societies, etc., but the circumstances which require or justify the exercise of this power must be manifest. The Act does not give the Court the power at the instance of a stranger, to supervise the conduct of the corporation or association, where the acts of which complaint is made have been discontinued and the avowed purpose abandoned, as in the case of a street car strike and the loss complained of by plaintiff resulted in the increased expense and trouble incident thereto. The right to an injunction must be established before an account of damages will be decreed.
Bill. Amended Bill and Demurrers. No. 1768 July Term, 1919. C. P. Allegheny County.
A. E. Anderson, for plaintiff.
Before Cohen and CARPENTER, JJ.
CARPENTER, J., February 4, 1920.—It is essential to the efficiency of a judicial decree that it emanate from a Court having jurisdiction and where the jurisdiction is statutory it is indispensable that the jurisdictional factor facts therein specified be pleaded.
In paragraph 3 of his bill, plaintiff says suit is brought pursuant to the provisions of the General Equity Act of June 16, 1836, P. L. 784, and calls attention to those provisions of the Act confer power to supervise and control corporations, other than municipal, and unincorporated societies, etc., and the power to prevent or restrain the commission or continuance of acts contrary to law and prejudicial to the interests of the community or the rights of individuals.
The bill is subdivided into 11 paragraphs, exclusive of the prayer, and, exclusive of exhibits, covers 23 pages. Broadly stated, the complaint is that the defendants, other than the receivers of the Pittsburgh Railways Company, organized and put in effect a “strike," in consequence of which plaintiff and others sustained damages. The fifth paragraph of the bill states that the "strike" began at one o'clock A. M., May 15th, 1919, and continued until about six o'clock P. M., May 18, 1919, a period of almost four days.
In the view we take of the facts, as set out at length in the bill, it is not necessary to extend this discussion by detailed recitals. In our opinion, the bill does not present a case cognizable in equity.
That a Court of Equity may ascertain and award damages is not disputable, but jurisdiction is a prerequisite to the exercise of this incidental power. The basic wrong here alleged is the “strike," but it had spent its force, was a closed incident, three weeks before the bill was filed. There is no averment that the defendants threatened to renew the strike or that plaintiff apprehends a renewal thereof. Stripped of redundant verbiage, the
Anderson et al. V Amalgamated Assn., Etc., et al.
bill charges that the "strike of which complaint is made was unlawful and injurious and while it continued caused loss and damage, part of which plaintiff sustained; or to be more specific, plaintiff charges that the strike compelled him to expend seventy-four cents for car fare which he would not otherwise have expended and four cents for extra copies of the 'Pittsburgh Post,' in all seventy-eight cents. He further says that other patrons of the Pittsburgh Railways Company suffered loss and damage and were subjected to discomfort and inconvenience.
The sixth, seventh, and eleventh paragraphs set forth in detail the matters to which we here refer. Having specified his personal financial loss, plaintiff estimates the loss resulting to the Receivers of the Pittsburgh Railways Company and others at $2,035,000.78, or, exclusive of his personal loss $2,035,000, and invites other citizens of the United States to join him as plaintiffs. The record does not show that the parties who sustained the estimate loss of $2,035,000 have availed themselves of the opportunity thus afforded to recoup their loss, nor has any other citizen taken advantage of the privilege accorded.
In view of the facts we fail to see why the Receivers were made defendants, but their joinder, if erronous, is harmless.
The bill does not allege want of an adequate remedy at law, the prayer discovers its purpose and the demurrer challenges the jurisdiction. We have said jurisdictional facts must be pleaded and by this is meant present or threatened "acts contrary to law and prejudicial to the interests of the community or the rights of individuals."
The statute empowers the Court to supervise and control corporations and unincorporated societies, etc., but the circumstances which require or justify the exercise of this power must be manifest. But we deem it unnecessary to discuss this phase of the question for reasons to which we have called attention. We are not convinced that the General Equity Act gives the Court the power at the instance of a stranger, to supervise the conduct of the corporation or association, where the acts of which complaint is made have been discontinued and the avowed purpose abandoned. In this instance the strike was history when the bill was filed, and in the absence of any averment that defendants threatened to renew it or that plaintiff had reason to apprehend a renewal, a decree directing that an injunction issue would be but “brutum fulmen” and the plaintiff in attempting to enforce it would "fight as one that beateth the air.”
The right to an account of the damages sustained is incidental, hence the right to an injunction must first be established. In the absence of a foundation, the bill cannot stand.
Neither by oral argument nor in his elaborate and carefully prepared brief and the several supplements thereto, has plaintiff furnished convincing reasons why his bill should be sustained.