Dillon's Estate.

purpose of proving that Mr. Irwin's testimony was not a fabrication of recent date for the necessities of this case," and was competent. Lyke v Lehigh Valley Railroad Company, 236 Pa., 38.

It is to be taken as true that the different agreements between Fuller and Mrs. Dillon were prepared by exceptants. It is undeniably true that the exceptants were instrumental to a very considerable extent at least after Fuller's death in securing for Lieut. Dillon on the Fuller-Dillon agreement $113,000 more than he would have received had the efforts of his New York counsel for the approval by this court of the proposed $212,000 settlement prevailed. It will be conceded that insofar as shown by the evidence exceptants never received any compensation for their services, except the $350 paid to Finley. It is clear, however, that this proceeding is not on the quantum meruit, but must stand, if at all, on a proved agreement between exceptants and Mrs. Dillon. In our opinion the preponderance of the credible evidence in the case is with the exceptants. In our judgment the alleged agreement has been proved by evidence that is sufficiently clear, direct and positive. And we find as a fact that there was a positive contract between the exceptants and Mrs. Dillon, the terms of which were definite and certain, to wit, that the exceptants were to receive for the services which they have rendered, ten per cent of the amount recovered from the Alfred M. Fuller estate on the Fuller-Dillon agreement. The exception to the administrator's account, therefore, must be sustained.

Decree of distribution accordingly.

Van Swearingen, P. J., specially presiding, on exceptions, December 30. 1919. Twenty exceptions to our decision and decree of distribution of May 13, 1919, were filed by counsel for Lieut. Dillon, but they were not presented for consideration by the court until very recently. When they were submitted, counsel for Lieut. Dillon declined to make any argument or submit any authorities in support thereof, simply dismissing the subject with the statement that "they raise nothing new." We therefore have no means of knowing what may have been in the minds of counsel when the exceptions were filed, other than by the reading of the exceptions themselves.

Thus considered it seems to us that none of the exceptions calls for any discussion, unless it be the twelfth, thirteenth and fourteenth, wherein it is alleged (12) that the court erred in holding that Lena G. Galley, by whom the contract upon which the claim is based is alleged to have been made in behalf of the decedent, was a competent witness to prove her authority to make such contract; (13) that the court erred in holding that there was sufficient evidence to establish the authority of Lena G. Galley to make such contract for and in behalf of the decedent; and (14) that the court erred in finding that the evidence is sufficient to establish the making of the alleged contract upon which the claim is based.

At the argument of the case following the close of the trial, after all the testimony had been transcribed and filed, and carbon copies thereof had been furnished counsel, it was not contended that any of the testimony or exhibits in the case had been improperly admitted, and the case was submitted to the court on its merits on all the evidence introduced. We are of opinion that the evidence was abundantly sufficient to establish the authority of Miss Galley to make the contract on behalf of Mrs. Dillon, and to prove the actual making of the contract by Miss Galley as the agent of Mrs. Dillon, and we are of opinion that Miss Galley was a competent witness to prove her authority to make the contract, the rule being that an agent's authority may be established by his testimony but not by his declarations. Hileman v Falck, 263 Pa., 351.

And now, December 30, 1919, the exceptions to our decision and decree of distribution of May 13, 1919, are overruled and dismissed.

In re Medical Preparations.

Official Formulae—Ingredients—Percentages—Act of June 7, 1917, and of May 8, 1909.

Under the Act of June 7, 1917, P. L. 564, amending the Act of May 8, 1909, P. L. 470, any preparation which does not contain the ingredients in the proportions prescribed by the official formulae as to standard of strength, quality and purity, violates the law and subjects those selling the preparation to the penalties provided therein.

You submitted to me some time ago, a bottle of medicine marked "Alcoholic Iodine, 3% Iodine 97% Alcohol, for External Use Only," and requested an opinion as to whether this preparation was a violation of the Act regulating the sale of drugs. In reply, would say that the third section of the Act of May 8, 1909, P. L. 470, amended by the second section of the Act of June 7, 1917, P. L. 564, provides as follows:

"Section 3. That for the purpose of this act an article shall be deemed to be adulterated:

First. If a drug is sold under or by any name recognized by the ninth revision of the Pharmacopoeia of the United States, the fourth edition of the National Formulary, or the American Homeopathic Pharmacopoeia, it differs from the standard of strength, quality, or purity as determined by the test or formula laid down in the ninth revision of the Pharmacopoeia of the United States, the fourth edition of the National Formulary, or the American Homeopathic Pharmacopoeia: Provided, That no drug defined in the ninth revision of the Pharmacopoeia of the United States, the fourth edition of the National Formulary, or the American Homeopathic Pharmacopoeia, except official preparations of opium, iodine, peppermint, camphor, ginger and ethyl nitrit, shall be deemed to be adulterated, under this provision, if the standard of strength, quality, or purity be plainly stated in juxtaposition with the official standard of strength, quality, and purity. upon the bottle, box, or other container thereof, although the standard may differ from that determined by the test or formula laid down by the ninth revision of the Pharmacopoeia of the United States, the fourth edition of the National Formulary, or the American Homeopathic Pharmacopoeia. Second. If its strength or purity fall below the professed standard or quality under which it is sold."

You stated to me that the official preparation of Alcoholic Iodine should contain 7% Iodine and 93% Alcohol. It seems plain, therefore, that this preparation sold under the above label does not contain the official amount of Iodine, and that on the label of the bottle submitted to me, as rerequired by the Act, the standard of strength, quality, or purity was not stated, in juxtaposition with the official standard of strength, quality, and purity, upon the bottle. This seems to me plainly a violation of this provision of the Act of 1909, as amended by the Act of 1917, and subjects those selling the preparation to the penalties provided in the Act.

Very truly yours,

WILLIAM I. SWOOPE,

Deputy Attorney General.

Steele v Maxwell Motor Sales Corporation.

Negligence-Passenger in Automobile

Collision With Truck

Separate

Actions Agreement as to Amount of Verdict-Effect on Other Action.

Defendant, the owner of an automobile, was held liable in damages for the death of one invited to ride in the automobile where the automobile collided with a motor truck. The owner of the truck would also be liable for the negligent operation of the truck by its chauffeur and an action would lie against each, nor would the agreement of one of the defendants to pay a certain sum in settlement of the case prevent the recovery of a judgment against the other defendant.

An injured party has a right to maintain a separate action against each party involved in acts of concurrent negligence, and such right can be barred only as meanwhile he has received compensation, so that where plaintiff had agreed with one defendant for a definite amount as compensation for the negligent death of her husband, the court could not at the trial of the case against another defendant for the same trespass instruct the jury that any verdict for the plaintiff could not exceed in amount the sum agreed upon with the other defendant in another action against a different defendant, but growing out of the same accident, especially where no judgment had been entered or satisfaction made for the agreed sum.

Motion of Defendant for Judgment N. O. V. No. 1675 April Term, 1918. C. P. Allegheny County.

Langfitt & McIntosh, for plaintiff.

Dalzell, Fisher & Hawkins and E. J. Kent, for defendant.

Gray, Thompson & Rose, for petitioner.

Before MACFARLANE, FORD and STONE, JJ.

STONE, J., January 12, 1920.-This was an action brought by the plaintiff to recover damages for the pecuniary loss she has sustained by reason of the death of her husband.

The charge is, that the death of Mr. Steele was caused through the negligence of the defendant.

After the jury had rendered a verdict for the plaintiff, counsel for the defendant filed a motion for judgment non obstante verdicto. At the trial of the case the defendant offered no evidence relative to the charge of negligence.

From the plaintiff's evidence, which is uncontradicted, it appears the husband of the plaintiff (he being at the time employed as the automobile editor of the Pittsburgh Dispatch), had accepted an invitation of the defendant to be an observer of a test to determine the mileage a Maxwell Automobile would make on one gallon of gasoline. Accordingly, late in the morning of November 1st, 1917, Mr. Steele and Mr. McVicar (the latter being the Automobile Editor of the Pittsburgh Press), boarded a Maxwell Automobile which had traveled several thousand miles; the top of the Automobile was down and the body, as well as the windshield, had various signs painted thereon, all depicting places at which this particular car had been exhibited, which painted signs on the windshield obstructed the vision. The automobile was in charge of a chauffeur employed by the defendant company. With the chauffeur, sat Mr. Steele on the front seat, and on the rear seat, which had capacity for three persons, Mr. McVicar sat alone. One gallon of gasoline was placed in the gasoline tank of the car and the tank was sealed. The car started on the proposed test from the place of business of the Pittsburgh Agent of Maxwell Automobiles and after traveling through certain of the streets of the City, and over various improved roads of the County, the automobile crossed what is known as the Oakmont Bridge (sometimes called the Hulton Bridge), from the south to the north end thereof. At about the time the automobile was at the north end of the bridge, it was traveling at a speed of from 12 to 15 miles

Steele v Maxwell Motor Sales Corporation.

per hour. The bridge crosses the Allegheny River, and paralleling the river on the nortth side thereof, and a short distance therefrom, there is a public highway known as the Freeport Road. On the Freeport Road there are two street car rails on the north side of the road. From the bridge proper to the nearest street car rail, there is a distance of 129 feet. The view from the bridge and from the bridge approach, up and down the river on the north side, is practically unobstructed. At the time the automobile was traversing this particular bridge approach, there were no other vehicles on it; neither were there any vehicles on the Freeport Road so far as the evidence discloses, within a reasonably close range of the bridge approach, excepting a street car traveling in an up-river direction, and a truck, in a down-river direction. This truck was proceeding at a speed of approximately 18 miles per hour. The attention of the chauffeur was directed to the street car; in fact he had his head turned in the direction of the approaching street car which would be down-stream. He did not look up-stream, and, consequently, did not observe the truck on the Freeport Road, going in a down-stream direction; and at least for a distance of 200 feet, could have seen the truck had he looked in that direction. The defendant's automobile had traveled a distance of 75 feet from the bridge proper, along the northerly approach thereof, when, at that point, the truck, having turned into and on the approach, collided with the automobile with such force that Mr. Steele was thrown therefrom, and the wheels of the truck passed over his body, so injuring him, that he died within approximately one hour after the accident. The approach, at the place of the accident, is 35 feet in width. The chauffeur in the employ of the defendant company sounded no klaxon, blew no horn and gave no other notice of the presence of the automobile or of his intention to turn into and upon the Freeport Road. From the point of accident to the nearest street car rail, it is distant 54 feet. If the automobile was traveling at a speed of 12 miles per hour, it would cover the distance from the bridge proper to the point of accident in between 4 and 5 seconds; and if it was traveling 15 miles per hour, it would consume but 3 or 4 seconds of time. At any rate, there was very little time consumed in traveling such distance. Sometime prior to the happening of the accident the chauffeur of the Maxwell Automobile had driven his car on the left side of the center of the bridge approach, and at the time of the accident the automobile was between the center of the bridge and the lower, or down-river side thereof, it being the evident purpose of the chauffeur and operator thereof, to cut corners as closely as conditions might warrant. Mr. Steele, just before the accident, in a terror stricken way, called "Look Out." The chauffeur, was not familiar with this particular road, and possibly with the route selected for this test; in fact it is the first time he had traveled this particular high

way.

These facts to which we have already referred, namely: the speed of the automobile at the time of accident and immediately prior theretothe failure to give notice by blowing a horn-or otherwise giving notice of the presence and approximate location of the automobile-the action of the chauffeur in paying attention alone to the street car and paying no heed whatever to the approach of the truck, the view of which was unobstructed and other matters which might be specifically referred to, are all questions requiring the submission of the case to the jury.

The defendant in its argument of its motion for judgment non obstante veredicto, takes the additional position that since the plaintiff having brought suit against the Hammond Packing Company, the owner of the truck involved in and connected with the death of Mr. Steele, which suit was compromised by Mrs. Steele, the plaintiff in this action and the Hammond

Steele v Maxwell Motor Sales Corporation.

Packing Company, and a verdict rendered in her behalf and against the Packing Company by agreement in the sum of $9,000.00, that thereby, Mrs. Steele, by her action is denied the right to recover against any other defendant. The defendant also claims that in event we are unable to agree with such a contention, at least the verdict, in this case, cannot be greater in amount than the sum of $9,000.00, the amount of the agreed verdict in the case against the Hammond Packing Company.

We are unable to agree with either of these contentions.

Had a verdict in the sum of $9,000.00, in the case against the Hammond Packing Company been rendered by the jury after the evidence had been taken, and the jury charged by the Court, if we understand the position of the defendant's counsel, it would be that in such event the verdict thus rendered would be no bar to the right of recovery of the plaintiff in this action and also no limitation as to the amount of a possible verdict.

The general rule in Pennsylvania is given by Justice Frazer in the case of Conway v Pottsville U. T. Company, 253 Pa., 211, who on page 214 rays: "Plaintiff was, undoubtedly, within her rights in bringing separate actions against each person connected with the construction of the bridge, and might have obtained judgment against any or all of them. She could, however, have but one satisfaction for the trespass, Chas. Eneu Johnson Co. v Philadelphia, 236 Pa., 510, and therefore a satisfaction of any of the judgments would amount to a satisfaction of all, for the reason, that the cause of action is the same * *

This is affirmed by Justice Stewart in the case Betcher v McChesney, 255 Pa., page 394.

Counsel on neither side have submitted any authority, and our own investigation discloses none, showing that a verdict of a jury rendered in conformity with an agreement of the parties has any greater or less effect or that the rights of any party to any action are thereby restricted in a greater and different way than they would be, had the verdict been rendered by the jury after having heard the evidence and been charged by the Court. To say that when Mrs. Steele agreed that a jury might render a verdict in her favor in the sum of $9,000.00, she thereby admitted that such a verdict would be the full amount of the financial loss she sustained by reason of the death of her husband, would be certainly stretching the imagination considerable and would be founded more on fiction than fact. Such a verdict is merely a compromise and was not taken with any understanding or agreement that it was to be the full measure of Mrs. Steel's financial loss. Judgment has not been entered on the verdict in the case of Mrs. Steele against the Hammond Packing Company; neither has the verdict been paid or anything on account thereof, and the offer of counsel for the defendant does not propose to prove that anything whatsoever has been paid.

An injured party has a right to maintain a separate action against each party involved in acts of concurrent negligence, and such right can be barred only as meanwhile he has received compensation.

Since one injured has the right to proceed with the trial of cases brought until he receives compensation, and there being nothing in the Pennsylvania rule holding that where a verdict is taken by agreement of the parties that such verdict would prevent a plaintiff in proceeding against any other defendant, we conclude that the verdict taken by agreement in favor of Mrs. Steele against the Hammond Packing Company does not interfere in any way with her right to proceed against the defendant in this case, the Maxwell Motor Sales Corporation, and neither does it limit the amount of a possible verdict.

The motion of counsel for defendant for judgment non obstante veredicto must therefore be refused.