Abernethy v Valley Township School District.

Public School Teachers-Increase in Salary-Act of July 10, 1919.

Under the second paragraph of the Act of July 10, 1919, P. L. 910, only teachers in school districts of the fourth class who were employed for the school year of 1918-19 and were in receipt of less than $100 a month, are entitled to an increase of 25 per cent. in salary. Hence, a teacher who was employed on the first Monday of September, 1919, cannot bring herself within the Act on the theory that her predecessor was employed during the year 1918-19 at $65 a month and would have been entitled to the increase had she remained in the employment of the district.

Affidavit of Defense in the Nature of Demurrer. No. 106 August Term, 1920. C. P. Chester County.

W. W. MacElree, for plaintiff.

W. E. Greenwood, for defendant.

BUTLER, P. J., June 28, 1920.-On May 2, 1919, defendant contracted with plaintiff to teach at Pleasant Grove School House for nine months, beginning on the first Monday in September, 1919, at a salary of $60 per month. On July 10, 1919, an Act, commonly known as the "Woodruff Bill," was enacted (P. L. 910), under which the minimum salary payable to plaintiff, the holder of a State normal school certificate, is fixed at $70 per month. She taught throughout the nine months for which she was employed, and has been paid therefor at the rate of $70 per month.

The plaintiff succeeded as teacher in the second and third grade of defendant district, which is a district of the fourth class, Jeanette Shoemaker, who during 1918-1919 received a monthly salary of $65.

Paragraph 2 of the Act above cited provides: "Each teacher in school districts of the fourth class, who holds a certificate other than a provisional certificate, and who, for the school year 1918-19, received a salary of less than $100 per month, shall receive an increase of salary of 25 per cent."

Plaintiff has brought this suit to recover, under the above recited second paragraph of the Act, an additional $11.25 per month, or a total of $101.25, claiming that, as her predecessor received 65 per month for 1918-19, which, increased by 25 per cent., amounts to $81.25 per month, that salary is fixed for the place, she is entitled to it, and, having received $70 per month, is entitled to the balance here sued for, $101.25, or $11.25 per month.

Defendant contends that plaintiff presents no cause of action; that, admitting all her averments, her conclusion that a balance remains due and unpaid is contrary to the law of the case. Where the words employed by the legislature have a plain manifest meaning, that meaning is to be enforced without regard to consequences, irrespective of what it may be thought thtey intended or should have accomplished. As plainly as language can state it, it is only a "teacher" "who for the school year 1918-19 received a salary of less than $100 per school month, who shall receive an increase of salary of 25 per cent." Manifestly, this language does not describe and include the plaintiff. It necessarily excludes her, for she was not a "teacher" in 1918-19, is not "one who received a salary," and, therefore, could not have an "increase" of salary.

If the plaintiff had taught in 1918-19, the salary she then received, if less than $100, would be the basis of her 25 per cent. increase.

Judgment is directed for defendant.

Wargo v State Workmen's Insurance Fund.

Workmen's Compensation Act-Minor Charitable Institution—Injury— Damages Action at Law.

Where employe, in an institution of public charity, under age, seeks compensation for injuries received in the course of her employment, referee deciding in her favor and affirmation by compensation board, and appeal on ground of unlawful employment of minor

Held, That employer being a charitable institution would be immune from action for damages, leaving claimant without adequate redress, and thus employer would be allowed to take advantage of its own wrong, and finding of referee awarding damages afirmed.

Appeal from Decision of Referee. No. 388 October Term, 1920. C. P. Luzerne County.

E. F. MCGOVERN, for claimant.
S. I. SPYKER, for defendant.

FULLER, P. J., October, 1920. In this case the defendant the State Workmen's Insurance Fund, stands in the shoes of the Wilkes-Barre City Hospital, employer of the claimant, a girl of twelve years of age, hurt while unlawfully employed in work prohibited at that age; and the only question involved in this appeal is her right to obtain compensation, which the referee, affirmed by the board, decided in her favor without discussion. If the employer were not an institution of purely public charity, immune as such from action for negligence (Fire Insurance Patrol v Boyd, 120 Pa., 624; Wildoner v Central Poor District, by Supreme Court, May 3, 1920, affirming C. P. of Luzerne, in No. 776 May Term, 1916), we should hold in harmony with other decisions that the Compensation Act does not apply to a case of unlawful employment (Ayers et al. v Dunlap Co., 4 Dept. Rep., 2189; Sweeney v Fishel Co., 4 Dept. Rep., 2181; Hegedos v Glass Co., 67 Pittsburgh Law Journal, 726; Lincoln v Tube Co., 68 Pittsburgh Law Journal, 102), thus leaving the claimant to her action at law for damages, in which the employer could not take advantage of his own wrong (Batkowski v Morris Run Coal Mining Co., 5 Dept. Rep., 519); but in view of such immunity it would seem harsh to put this poor girl out of court on her present proceeding for compensation, only to throw her out of court later in her action for damages against the hospital, or to leave her in the end with only a barren, uncollectible judgment, perhaps, against the individual representative of the hospital directly concerned in the employment. The defendant has displayed a very humane spirit, which we cordially commend, avowing its preference to lose rather than to win the case if the law warrants, and only seeking to obtain a decision of the legal principle; and we think that its humane spirit, as well as its legal desire in the premises, may be fully maintained by announcement of this opinion, viz.:

(1) That the claim for compensation would be disallowed if the employer were liable to action at law for damages;

(2) That this employer, being a charitable institution, would be immune from such action, leaving the claimant without adequate redress;

(3) That the employer, therefore, by successful resistance to the claim for compensation, would be allowed to take advantage of its own wrong, which neither the employer nor the defendant standing in its shoes should be allowed to do.

Accordingly, the finding of the referee, affirmed by the board, is now

affirmed.

Commonwealth of Pennsylvania v Hall.

Habeas Corpus- -Father and Mother—Policy of the Law-Mother's Prior Claim Evidence.

All things being equal, the mother being fully able to care for her child, and no good reason being advanced why she should not have the care and custody of her child, which had been in the custody of the father from the time of the separation a few months prior to the issuing of the writ of habeas corpus was entitled to its care in preference to that of its father.

Habeas Corpus. No. 142 January Term, 1921. C. P. Allegheny County.

Edwin B. Goldsmith and Benj. H. Cooper, for plaintiff.
Wm. D. Grimes, for defendant.

KLINE, J., November 10, 1920.-This cause comes before us on a writ of habeas corpus to determine the custody of Earl Edmond Hall, minor child of Edmond L. Hall and Mary M. Hall.

It appears from the evidence that Edmond L. Hall and Mary M. Hall were married on the 19th day of April, 1917, and from that time until March 22nd, 1920, lived together as husband and wife.

That there was born of this marriage, one child, Earl Edmond Hall, now aged about two years and seven months. That since the separation of the parties the child has been in the care and custody of its father, who makes his home with his parents at No. 727 Ivy Street, Pittsburgh, Pa.

There was much testimony given concerning the moral and financial condition of the grand parents. The respondent's parents are highly respectable people, well able to care for the child and have exercised great care of it since it has been in their care and for which they are to be commended.

The relatrix's parents are good honest people not in as good circumstances financially as those of the relator's, but it is no disgrace to be poor, and if parents are to be deprived of the custody of their children on account of finance only, thousands of people of this great community of ours would be deprived of the love, association and custody of their children.

Although much testimony was given as to the condition of the homes of the grand parents, yet the question still remains, who is the proper person to have the care and custody of this child, the father or the mother?

It appears that the respondent is a very young man and employed as an automobile driver, which employment takes him away from home practically all of the time, and the burden of caring for the child is upon the respondent's parents.

That since the separation, the relatrix has been living with her parents in the City of Pittsburgh, and has been constantly employed in order to sustain herself. There was some evidence given as to the incompetency of the relatrix to care for her child, in that during the time her husband was away at war, she had some soldier and sailor boys at her parent's home, they being entertained by her parents and other girl friends. If this is a crime then thousands of our good thinking people would also be guilty of the same offense, for during the trying times through which we have just passed, the homes of all were thrown wide open for those who were willing to lay down their lives as a willing sacrifice upon the altar of universal democracy.

Little weight could be given to this testimony as it was principally the testimony of one who was guilty of gross abuse of confidence.

We are of the opinion that the relatrix has not been guilty of any improprieties that would render her unfit to have the care and custody of her child.

In disposing of cases affecting children, under the existing circumstances, we must be governed by that which we deem is for the best interest of the child.

Commonwealth of Pennsylvania v Hall.

All things being equal, the mother being fully able to care for her child, and no good reason being advanced why she should not have the care and custody of her child, we are of the opinion that the future of the child can best be affected under the care and love of its mother, whose love is the divine essence increate of eternal love.

Sweet v Harris.

Judgments Rule to Have Marked Satisfied-Pleadings-Act of 1876.

The remedy by petition for satisfaction of a judgment under the Act of 1876 is "confined to cases of actual payment in full of the defendant or possibly to cases of such indisputed facts as produce a conclusive result of strict law that satisfaction equivalent to actual payment has been obtained." If there is any doubt or question as to the facts, or the inference to be drawn from them the statute cannot apply, and rule to satisfy discharged where it appeared the judgments were not offered as a defense in another action but were only referred to as having been omitted from a schedule of credits.

Rule. Sur Petitions to Have Satisfaction of Judgments. No. 385 April Term, 1919. C. P. Allegheny County.

Alfred M. Lee, for plaintiff.

James A. Nugent, for petitioner.

Before SHAFER and EVANS, JJ.

SHAFER, P. J., November 10, 1920.-The proceedings are, as we understand it, under the Act of 1876 to have the three judgments marked satisfied. It is not alleged by the defendants that these judgments were ever actually paid. It is claimed, however, that in an action by one of the defendants against the use plaintiff, in the three judgments, in the County Court of Allegheny County, these judgments were pleaded and the jury charged to consider the same as a defense.

The use plaintiff, D. W. Brinton, in answer to the petitions in these three cases, denies that he put these judgments in as a defense in the action in the County Court and says that they were only referred to in crossexamination and avers that counsel for the plaintiff in that case in preparing the schedule of credits to which Brinton was entitled, did not include these judgments.

This, in itself, seems to us sufficient to show that the case is not within the purview of the Act of 1876 and an examination of the affidavit of defense filed by Brinton in the County Court shows that the only reference contained in it to those notes, is that paragraph which says that the plaintiff gives notice that he has taken an assignment of these judgments; and he further gives notice that if the conditions of the transfer are not followed completely, that within a reasonable time he, the defendant, will proceed to collect said notes. This whatever it amounts to, does not appear to be a claim of set off in that case.

The remedy by petition for satisfaction is "confined to cases of actual payment in full by the defendant or possibly to cases of such indisputed facts as produce a conclusive result of strict law that satisfaction equivalent to actual payment has been obtained." If there is any doubt or question as to the facts, or the inference to be drawn from them, the statute cannot apply. Atkinson v Harrison, 152 Pa., 472.

The petitions in these cases, are therefore dismissed.

Grigsby v Karchnak.

Judgments Justice of the Peace-Transcript―Striking Off-Jurisdiction.

A judgment entered in the Common Pleas on the transcript of a judgment entered by a justice of the peace, which shows the plaintiff's claim was "for damages to personal property," will be stricken from the record, because the justice's transcript does not show facts from which the court can determine whether the action properly was one of trespass vi et armis or on the case. If the proper form of action would have been the common law action of trespass vi et armis the justice would have had jurisdiction, otherwise not.

Jurisdiction by a justice of the peace must be shown affirmatively by the record. Nothing is to be presumed in favor of jurisdiction.

Rule to Show Cause Why Judgment Should Not Be Stricken from the Record. No. 169 December Term, 1916. C. P. Fayette County.

David E. Bane, for plaintiff.

George Patterson, for defendant.

VAN SWEARINGEN, P. J., November 23, 1920.-Judgment was entered in this Court in favor of the plaintiff and against the defendant for $56.70 on the transcript of the record of a judgment entered by a justice of the peace. Defendant took a rule on plaintiff to show cause why the judgment should not be stricken from the record, it being alleged by defendant, inter alia, that the justice's record does not show that he had jurisdiction to hear the case and enter the judgment. The transcript of the justice shows: "July 21, 1916, plaintiff appears and presents claim for $56.70 for damages to personal property of plaintiff by defendant.”

In Grosky v Wright, 2 Kulp 415, Judge Rice said: "A justice has jurisdiction of actions of trespass brought for the recovery of damages for injury done or committed on real and personal estate. It has been many times decided that the damages for which a plaintiff may sue in this form of action are such as arise where the injury is immediate, and would be recoverable in the common law action of trespass vi et armis, and not such as are conseqquential and would be recoverable, if at all, only in an action of trespass on the case." And in Krout v Detwiler, 3 Just. L. R., 183, Judge Weand, in speaking of the record of the justice, said: "His record shows 'plaintiff claimed under oath the sum of $8.80 for damages to wagon and clothing.' It nowhere appears how the damage was caused. If negligently done, the cause of action is case and not trespass, and the justice would have no jurisdiction. The record of the justice must show his jurisdiction affirmatively and with certainty."

Jurisdiction in such cases must be shown affirmatively by the record. Nothing is to be presumed in favor of jurisdiction. In the present instance the record of the justice does not show facts from which we can determine whether the action properly was one of trespass vi et armis or on the case. The record, therefore, not showing on its face that the justice had jurisdiction in the case, the judgment entered by the justice is void and the judgment entered in this Court on the justice's transcript should be stricken off. Pantall v Dickey, 123 Pa., 431.

And now, November 23, 1920, for the reasons stated in the opinion herewith filed, the rule to strike off judgment is made absolute, and the judgment is stricken from the record.