Minster v Marcus.

Negligence Disagreement of Jury-Judgment Upon the Whole RecordQuestions of Fact.

Where plaintiff sought to recover damages for the death of her husband, who had been killed by an automobile, the contributory negligence of decedent as well as the desertion or non-desertion of decedent by his wife and of the contribution or non-contribution of sums of money and articles of clothing alleged by the plaintiff to have been contributed to her support, were held to be questions for the jury and motion for judgment upon the whole record after a jury had disagreed overruled.

Motion for New Trial. No. 529 October Term, 1919. C. P. Allegheny County.

R. A. Hitchens, for plaintiff.

John M. Gallagher, for defendant.

REID, J., March 20, 1920.-This is an action by Rose Minster, widow of Anthony Minster, to recover damages for the death of her husband, which occurred, it is alleged, through the negligence of the defendant's agent in driving an automobile which struck the decedent causing injuries from which he soon thereafter died.

After an extended trial, the jury was discharged by reason of its failure to agree upon a verdict.

Defendant's counsel presented a point asking the Court to instruct the jury that under all the evidence in the case their verdict must be for the defendant. This point was refused and the case submitted to the jury, as above stated.

Following the disagreement of the jury and in accordance with the provisions of the Act of April 20, 1911, P. L. 70, defendant's counsel moved the Court to have all the evidence taken upon the trial duly certified and filed and for judgment in favor of the defendant upon the whole record. Upon the hearing of this motion, defendant's counsel strenuously maintained that the evidence disclosed, (1) contributory negligence on the part of the decedent, and (2) the fact that the plaintiff had deserted the decedent fifteen years previous to his death, and, finally, that the evidence of any contributions by the decedent to the plaintiff was so vague and unsatisfactory as not to warrant the submission of that fact to the jury.

After carefully considering the brief of defendant's counsel and all the reasons there presented, we can not agree with him that the record discloses such a case as to warrant the entering of judgment for the defendant under the authority of the Act of Assembly above referred to.

Our view of the testimony as to the occurrence of the accident and the existence or non-existence of contributory negligence is that it was clearly a question of fact for the determination of the jury. We are also convinced that the question of desertion or non-desertion of decedent by his wife and of the contribution or non-contribution of sums of money and articles of clothing alleged by the plaintiff to have been contributed to her support, was also a question of fact for the jury.

Being of opinion, therefore, that the case should be re-tried by a jury, we must refuse the motion for judgment upon the whole record and remit the case to be tried by a jury in the usual manner. We, therefore, enter the following order:

ORDER.

And now, March 20, 1920, upon consideration of the motion ex parte defendant for judgment upon the whole record in favor of the defendant, the Court being of opinion that the questions of fact involved in the case

Minster v Marcus.

are such that they should be re-tried by a jury therefore refuses the motion of defendant for judgment upon the whole record, and directs that the Prothonotary place the case upon the trial list for re-trial, sec. leg.

Cummings v Gordon,

Replevin Landlord's Warrant-Election-Set-off.

A tenant who has brought suit before an alderman to compel his landlord to defalk his just account against the claim for rent, is not thereby estopped from taking subsequent action by writ of replevin to test the landlord's right of distress for the rent in arrear.

Replevin. Motion to Quash Writ. No. 394 March Term, 1920. C. P. Lackawanna County.

Jerome Myers, for plaintiff.

T. P. Duffy, for defendant.

NEWCOMB, J., March 9, 1920.-The action is replevin. The motion to quash is found on no intrinsic reason but upon grounds set up by petition ex parte.

It thus appears that plaintiff is tenant to one of the defendants and that the writ issued to test the landlord's right of distress for rent in arrear. This the latter says is irregular because the tenant had already invoked the jurisdiction of an alderman to compel the landlord to defalk his just account against the claim for rent, though as yet he has made no tender of the amount thus settled against him.

Defendants' theory is that plaintiff thereby made his election as between concurrent remedies and is now estopped from interfering with the distress.

The supposition is erroneous. If the defalcation proceeding is conclusive between the parties, no doubt advantage of it may be taken in defense to the action. But, if so, it is because it goes strictly to the merits. A motion to quash is a very different thing and goes to the technical regularity of procedure. The question is hardly debatable and calls for no

particular discussion.

The rule to show cause is discharged and the motion denied.

Hanley v Wyland et al.

Partnership- -Dissolution and An Accounting Terms of AgreementDemurrer.

A demurrer to a bill for a dissolution of a partnership and an accounting was dismissed where the agreement between the partners related to fixing a price to be paid a partner voluntarily withdrawing from the co-partnership, but did not provide a method of effecting a dissolution where a partner was excluded and his co-partners, against his protest, took over and managed the joint affairs.

In Equity. No. 2079 April Term, 1920. C. P. Allegheny County.
Ed. G. Hartje and Calvert, Thompson & Wilson, for plaintiff.
John E. Winner, for defendant.

Before DREW and FORD, JJ.

FORD, J., April 17, 1920. This is a Bill in Equity praying dissolution of a co-partnership and an accounting. As a cause of demurrer, defendants allege that the Court has no jurisdiction to entertain the Bill of Complaint for the reasons:

(a) That the agreement for co-partnership entered into between the parties plaintiff and defendant, provided how the partnership is to be dissolved, and

(b) The bill does not aver that the sum of Five Thousand Dollars has been accumulated.

By the agreement, a copy of which is annexed to the Bill of Complaint, it is provided that if one of the parties desires to retire from the business, the continuing partners have the first chance to purchase the interest of the retiring partner at a price to be agreed upon. If the price could not be agreed, the matter is to be determined by arbitrators in a mentioned manner.

The complainant did not elect or express a desire to retire. His contention is that by the acts of the defendants, he has been wrongfully excluded from the partnership business, denied the rights to exercise his rights as a co-partner and the defendants have been and are now carrying on the business of the co-partnership in direct violation and in disregard of the express agreement between the co-partners. The provision referred to relates to fixing a price to be paid a partner voluntarily withdrawing from the co-partnership, but does not provide a method of effecting a dissolution where a partner is excluded and his co-partners, against his protest, take over and manage the joint affairs.

The agreement further provides that the profits realized shall remain in the firm's depository until the sum of Five Thousand Dollars has been accumulated and thereafter the profits shall be divided between the copartners, share and share alike. The purpose of the provision was to provide a working capital.

The co-partnership was not for a definite period, and the fact that Five Thousand Dollars may not have been realized in profits, would not in itself prevent a partner from seeking to dissolve the co-partnership upon proper cause shown.

ORDER.

Now, April 17, 1920, the demurrer is overruled.

In re Hospital Expenses.

Private Physician-Removal to Hospital-Ap

Workmen's Compensation portionment of Medical Fees.

Under the Workmen's Compensation Act of 1915, if medical services and supplies furnished by a physician amount to less than $100 and the injured employe is then transferred to a hospital, it can recover the difference between the previous expenses and $100 during a 30-day period. The compensation for services during that period are limited in all cases to $100.

There was duly received your communication of the 22nd ultimo, inquiring as follows:

"When a patient has been treated in another hospital, or by surgeons or physicians for a number of days and said party is paid $100 for their service, then for various reasons the patient is transferred to the Shamokin State Hospital, can we charge and collect for the remaining number of days specified by law?"

I assume you mean your rights as against the employer or his insurer.

Your inquiry is pertinent only where the injured employe survives the ten-day waiting period, this department having advised you on March 5, 1920, that there is no liability on the part of the employer or his insurer to your institution where death results within ten days after the accident.

Section 306 of the Workmen's Compensation Law of June 2, 1915, P. L. 736 as amended by the Act of June 20, 1919, P. L. 643, provides inter alia, as follows:

"During the first thirty days after disability begins, the employer shall furnish reasonable surgical and medical services, medicines and supplies, as and when needed, unless the employe refuses to allow them to be furnished by the employer. The cost of such services, medicines and supplies shall not exceed $100. If the employer shall, upon application made to him, refuse to furnish such services, medicines and supplies, the employe may procure the same, and shall receive from the employer the reasonable cost thereof within the above limitations. In addition to the above services, medicines and supplies, hospital treatment, services and supplies shall be furnished by the employer for the said period of thirty days. The cost for such hospital treatment, service and supplies shall not in any case exceed the prevailing charge in the hospital for like services to other individuals."

On November 14, 1919, the Workmen's Compensation Board adopted the following rule:

"The accidents happening on or after January 1, 1920, where there are both medical and hospital charges, or hospital charges alone, the Board will rule $100 as a maximum charge for the latter."

Under the foregoing provisions your rights against the employer or his insurer, are clear. If medical services, medicines and supplies are furnished by a physician to the value of $100 or less, and the employe is then received by your institution, you can recover the value of your services, medicines and supplies furnished during the thirty-day period not exceeding the sum of $100.

In re Hospital Expenses.

If medical services, medicines and supplies are furnished by a hospital, the pecuniary value of which is less than $100, and the employe is then transferred to your institution, you can recover for services, medicines and supplies the difference between $100 and the pecuniary value of the services, medicines and supplies furnished by the hospital from which the employe was transferred. If the cost of the services, medicines and supplies in the hospital which first received the employe equals or exceeds the sum of $100, you can recover nothing under the Workmen's Compensation Law from the employer or his insurer. Very truly yours,

This was

an

On certiorari, a judgment of a justice of the peace was affirmed where plaintiff sued to recover damages suffered in repairing an automobile. immediate and direct injury to property, and the justice had jurisdiction.

Certiorari. No. 7 January Term, 1920. C. P. Lehigh County.

James F. Henninger, for plaintiffs.

Edwin K. Kline, for Defendant.

GROMAN, P. J., April 5, 1920.-Plaintiffs brought an action of trespass against defendant, before an alderman of the City of Allentown, County of Lehigh and State of Pennsylvania, to recover damages suffered by plaintiffs in a collision with an automobile owned by defendant. Summons issued August 16, 1919, hearing was had before the alderman on August 22, 1919, defendant failed to appear, the alderman entered judgment, making the following entry: * * Plaintiffs appear * * *, defendant does not appear. Plaintiff George E. K. Guth sworn, claims the defendant collided with their automobile on June the 17th, 1919, at Franklin and Chew Streets, Allentown, Pa., damaging their car, which cost $240.12 to repair. After hearing proofs and allegations, plaintiffs' attorney asks for judgment in the sum of $240.12. And now, August 22, 1919, judgment is entered publicly by default in favor of plaintiffs and against the defendant in the sum of $240.12 with interest, together with the costs of suit."

On September 29, 1919, execution issued; the constable, on October 2, 1919, returning he had "levied upon the goods and chattels of the within named Cyrus D. Stein." October 7, 1919, a writ of certiorari issued out of the Court of Common Pleas of Lehigh County, returnable the first Monday of January, 1920; exceptions were filed by plaintiff. At the argument, the question of jurisdiction was further raised. We take it, the question of jurisdiction may be raised at any stage of a legal proceeding; this being so, that question will first be disposed of. In an opinion filed in this court in Richard H. Scheirer v Edwin J. Gross, 117 April Term, 1915, where the cause of action arose out of circumstances almost similar to those in the matter before us, the question of jurisdiction having been raised before the justice as well as after appeal and trial had, in disposing of the question we held as follows: "The form of the action before the