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the said Eleandr Rodman, and that his error "was not known or discovered until daughter was, in March last, fitteen years after the appraisement of the estate had old, and has been employed in the Silk Mills been made and filed of record.” of the Shehli Silk Mills Corporation, for r! The prayer of the petition is that an which service she is receiving nine dollars order issue directed to the register to correct per week. For these reasons, he asks for the record to "conform to the true facts" the revocation of the said decree. In an therein set forth. answer filed by Eleanor Rodman, all of the If this court had jurisdiction to grant the above allegations are admitted, except the prayer of the petition without notice, as is one relating to the wages earned by the proposed, several difficulties lie in the way. daughter. It is said that she is now em- It is not disclosed what records are to be ployed by Follmer, Clogg & Company, and corrected. It is asserted that letters were is paid from $3.00 to $3.50 per week. As issued by the register, a bond was filed by no depositions have been taken, we must the petitioner and an inventory was made assume that this latter claim is correct. and filed. If a renunciation was filed and
Of course, the defendant is no longer proof of death submitted these papers are liable for the maintenance of his late wife, probably on file, and neither copies of these a legal separation having been decreed be papers, or any other papers, are attached to tween them. But he must support his child. the petition so that it could be ascertained As she is only earning from $3.00 to $3.50 what corrections should be made in this per week, it is necessary for him to add to record. this amount for her proper maintenance. This application should have been made We think, as the order was made for the to the register, who has power to revoke mother and child, he should be allowed letters improvidently issued, Neidig Estate, something because of the divorce, and that 183 Pa. 492. the order should be reduced to $2.00 per
Letters of administration are improvidweek from this date, on condition that all ently granted when the proofs of deach the back money be paid. To this extent, were made in the name of a man who did we make this rule absolute.
not exist; that letters were granted in that Rule made absolute.
name upon the petition of a woman who
was not the widow of a man of that name, ORPHANS' COURT
While it is possible for error of this char0. C. of
Schuylkill Co. acter to be corrected in record papers upon Smith's Estate
proof after proper notice, larger difficulties Error in Name of Decedent-Jurisdiction
lie in the path of correcting the bond filed
that its value as a protection to the estate The register of wills has jurisdiction in all matters relating to letters which have been issued may not be impaired. improvidently; error in the name of the decedent The petition is dismissed. may be corrected by him. Petition.
Gettel's Petition E. W. Shoemaker for Petition.
Judicial Sales-Enforcement and Validity. Nov. 12, 1917. WILHELM, P. J.- This
Respondent and decedent's administratrix petition sets out that James Edward Smith / agreed upon a private sale to the former of dedied on the 22nd day of August, 1917, and cedent's real estate; but, upon exceptions filed, it can be inferred from the caption in the the Court refused to confirm the sale and ordered
a public sale, at which petitioner bought the proppetition, notwithstanding there is no aver-erty. The sale was duly confirmed and deed ment to that effect, that letters of administra- executed and delivered; but respondent, having tion were issued in said estate in the name of entered into possession before ihe public sale, Joseph E. Smith. It is presumed that the refused to vacate, whereupon, a petition was filed name of Joseph E. Smith was represented to citation was granted. Held, that judgment must
under the Act of April 20, 1905, P. L. 239, and the register as being the name of the decedent. be entered against the respondent.
The petition further states that the widow, The facts plainly disclose that the petitioner is Minnie Smith, renounced her right to ad- the owner of the real estate in question, having minister in favor of Thomas H. Snyder, Orphans' Court, and from all the facts, he has a
his title through an order and decree of the who fled his bond for the faithful perform- present right of the possession thereof. ance of his duties as adminstrator.
Citation issued to Howard Bollinger, It is also alleged that there was error in commanding him to appear and answer and the first name of the decedent and that said show cause, if any he has, why possession of
certain real estate described in the petition, sold the same at said sale to Frank M. should not be delivered to the petitioner. Gettel, for the price and sum of $8500.00, A. C. Wiest for petition.
he being the highest and best bidder for said E. E. Allen for respondent.
real estate; and upon return of said sale to
this Court by said Administratrix on the January 7, 1918. Ross, J.- This case 14th day of May, 1917, the Court confirmed was argued before the Court upon the peti- the sale so returned, nisi, and at the time tion of Frank M. Gettel, and the answer thereafter fixed by rule of court, the said thereto of Howard Bollinger.
confirmation became absolute. The admitted facts gathered from those 8. Subsequently, the said administratrix pleadings are as follows:
executed and conveyed the said real estate 1. Jacob Bollinger, late of Shrewsbury by deed as administratrix and by virtue of Township, York County, Pennsylvania, died said order, decree and confirmation of said intestate, on the 23rd day of August, 1916, sale, delivered said deed to the said Frank seized and possessed of certain real estate M. Gettel, upon his paying to her the said described by the petitioner in his petition. sum of $8500.00.
On the 5th day of September, 1916, 8. After the said Howard Bollinger had letters of administration were granted by agreed to purchase the said real estate for the Register of Wills of said York County, the price or sum of $8100,00 and before to Rebecca Bollinger.
said public sale, he entered upon said prem3. Subsequent to the granting of said ises and tract of land and took possession letters of administration, there was an agree thereof, and there remains and claims posment made with Howard Bollinger, the session thereof, although he has had due present respondent, to sell to him the said notice of the legal proceedings in the real estate for the sum of $8100.00. Orphans' Court of York County, Pa., and
On the 12th day of February, 1917, of the sale and conveyance under and by virsaid administratrix presented to this Court tue of said Orphans' Court proceedings of the her petition showing, among other things, said real estate to the said Frank M. Gettel. that the personal estate of said Jacob Bol
The petitioner, in order to obtain his legal linger, deceased, is insufficient to pay his possession of the real estate so purchased by debts, and the necessity for the sale of his him at a judicial sale invokes the Act of real estate to pay the debts of said decedent, General Assembly, entitled "An Act proand praying the Court to authorize, decree viding for and defending the rights, remedies, and approve a private sale of the said real duties, and liabilities of purchasers of real estate to Howard Bollinger for the sum of estate at judicial sales, and of their grantees, $8100.00, for the purpose of paying the heirs, and devisees thereof," approved the debts of said decedent: thereupon the Court 20th day of April, 1905, P. L. 239. ordered that a private sale be authorized, It will be noticed by reference to the aldecreed and approved, as prayed for, on legations in the answer, that the petitioner's Monday, March 12th, 1917, at 10 o'clock averments are not controverted and that no A. M., unless exceptions be filed and a sub- material new matter is advanced by the stantially larger offer therefor be made at, answer, as replied to by the petitioner's repor before that time.
lication, so that under the 8th and 9th secIn due time exceptions were filed and tions of the Act of Assembly, no jury trial a substantially larger offer was made for the having been requested, the matter was propsaid real estate. After a hearing, on March erly before the Court on the pleadings; 20th, 1917, the Court made an order and Spang v. Mattes, 253 Pa. 101. decrec refusing to decree and confirm said The facts plainly disclose that the petiprivate sale, and in accordance with the tioner is the owner of the real estate in order of the Court, the exceptant and bidder question, having his title through an order secured his bid for the said real estate for and decree of the Orphans' Court, and from $8500.00, and a public sale thereof was all the facts, he has a present right of the ordered by the Court on the 26th day of possession thereof. Therefore, under the March, 1917, to be held within two hundred 12th section of the said Act of Assembly, days from the said 20th of March, 1917 the Court, 6. In accordance with the order of the
Enters judgment in favor of the petitionCourt, the said Administratrix advertised er, Frank M. Gettel, at the costs of Howard the said public sale of said real estate, and Bollinger, the respondent.
TRecord summary of the material facts relied upon by
Those facts seem to be embodied in separVol. XXXI' THURSDAY, FEBRUARY 7, 1918.
ate paragraphs which together form a chron
ological recital of the facts which the plainCOMMON PLEAS
tiff is bound to prove at the trial, if the
defendant denies them. Ruth v. I.,0. R. M.
Each of the paragraphs can readily be de
nied or affirmed by the defendant. If dePractice-Act of 1915-Sufficiency of State-nied, the plaintiff, of course, must produce ment.
proof at the trial; but they seem to be such Plaintiff's statement, in numbered parapraphs, plain allegations of fact, that the only inset forth that the contract was in writing; ihat ference to be drawn is that they are true, plaintiff resided in York; that defendant was a unless they are denied by the defendant as beneficial association in York; decedent's membership and death; designation of plaintiff as
specifically as they are stated by the plaintiff. beneficiary; authority for such designation : notice
It is our opinion, that the Act of 1915 and proof of death and failure of payment by means that where the plaintiff's statement is detendant. Held, that a motion to strike off the uniform and clear, every defence whether statement as not in conformity with the Practice of fact or of law, must be clearly set up in Act of 1915 must be refused.
Where the plaintiff's statement is uniform and the affidavit of defence. clear, every defence whether of fact or of law, The ist, 2nd, 3rd, and 4th reasons raised must be clearly set up in the affidavit of defence.' by the defendant's affidavits are therefore Allegations that the statement "presupposes
The prayer of the defendant's affidavit
"to strike from the records the plaintiff's
statement as not being in conformity with Question of Law raised by Affidavit of the “Practice Act, nineteen fifteen,” is Defense.
refused. S. B. Meisenhelder and A. II'. Hermann
The defendant is ordered to file its affifor motion.
davit of defence within fifteen days from
Allegheny Co. ment in this case is intended to conform to
Ayres et al. v. John Dunlap Co. the provisions of the "Practice Act, 1915.
The defendant in the affidavit of defense, Workmen's Compensation-- Minors--Action says that it "does not conform to the provi- at Law - Liability of Employer-Child's sions of the Act" in that,
Labor Act of May 13, 1915, P. L. 286. 1. It “is not in concise and summary form One who employs a minor contrary to the of the material facts on which the plaintiff Child's Labor Act of May 13, 1915, P. L. 286, is rests her case.” 2, That "it introduces ap- an action at law. Such an employe is not within
liable in damages for injuries to such employe in parently all the evidence of the plaintiff's the Workmen's Compensation Act of 1915. case. 3, That it "contains conclusions of The Workmen's Compensation Act of 1915, relaw.” 5, That it “presupposes and rebuts 'ferring as it does to parties legally competent to theories of the defence.” 6, That “if defend- contract, must not be construed as destructive of
statutes enacted for the protection of employes of ant is required to file an affidavit of defence whom many are under legal disability, so that in accordance with the *
to the the Compensation Act does not deprive such emstatement of claim as filed, * * the ployes of their rights at common law. defendant will be obliged to divulge its en- of 1915 was overruled in an action for damages
A statutory demurrer under the Practice Act tire defence, to answer matters that may not for injuries received by a minor while employed be material to the issue in this case and to
to the Child's Labor Act of May 13, argue matters that are questions of evidence.” 1915; P. L. 286, in that such an employe was not An inspection of the plaintiff's statement sation Act, which does not vest minors with
within the provisions of the Workmen's Compenleads to the conclusion that it is a concise
power to contract.
"After all, it is a question of legislative E. T. Adair and R. P. M. R. Marshall,
intention and since that intention was writfor plaintiff.
ten into the very first section of the act in Rose & Eichenauer and James H. Gray, sent case, a construction giving the act a
language broad enough include for defendant.
more restricted meaniny would make an January 7, 1918. CARPENTER, J.-The arbitrary distinction not warranted by the question of law raised by the affidavit of de- language used." fense is—Does the Workmen's Compensa- I have quoted at length, that no misap. tion Act of 1915 preclude recovery of dam- prehension may exist as to the ground upon ages by the plaintift's in a common law which my conclusion is based. action?
It is contended by counsel for defendant The facts out of which the question arises, that inasmuch as the legislature has, in the as set forth in the statement, are: Thomas Workmen's Compensation Act, defined the Ayres, Jr., when a minor fifteen years of word “employe" the court is bound to adopt age, was employed by defendant and work- the definition, and if so, plaintiffs are preing as a helper on a press or stamping ma- cluded from maintaining this action. Secchine used in sheet metal manufacturing, tion 104, so far as material to the present and while so employed was seriously injured. discussion, reads: The question never has been before our “The term 'employe' as used in this act is court and counsel state they have not found declared to be synonymous with servant and any decision in this State in which it has includes all natural persons who perform been discussed. Assuming, as we must, that services for another for a valuable considerplaintiffs' statement presents a cause of ac- ation," etc. tion at common law, the effect of the statute This is a comprehensive definition and if is, alone, before the Court. The Act de- taken literally embraces minors under fourfines certain words and phrases used therein. teen years of age whose employment "in and The power of the legislature, in this parti- about or in connection with any establishcular, is not questioned and is expressly rec- ment" is expressly prohibited by the Act of ognized in McElhone v. Philadelphia Quar- May 13, 1915 (P. L. 286), and minors tette Club, 53 Sup. Ct., 263, opinion by judge under 16 years of age who, by Section 5 of Henderson, in which the court say:
the Act, are prohibited employment in opere “In the construction of a statue, words, chines used in sheet metal manufacturing.
ating or assisting in operating stamping maif of common use, are to be taken in their Section 8 of the same act provides that natural, plain, obvious and ordinary signifi- before any minor under the age of 16 years
But it must be conceded that it is shall be employed, permitted or suffered to clearly within the power of the legisiature work in or about or in connection with any to declare in the statute the sense in which
establishment or in any occupation, the perit used certain words words therein contained, and that the legislature has an inherent keep on file an employment certificate
son employing such minor shall procure and right to prescribe the legality of its own definition or language. A construction put have been enacted which in their general
many States workmen's compensation laws upon an act of the legislature by itself, by
scope and purpose are similar to ours, but in means of a provision embodied in the same, that it shall not be construed in a certain ed" legally permitted to work under the
a large number the words “lawfully employdesignated manner, is binding upon the laws of the State, or qualifying phrases of courts, although the latter without such a
similar import are used. direction would have understood the language to mean something different; Com. acted a law forbidding the employment of
Having, at the same session (1915), env. Curry, 4 Pa. Sup. Ct. 356; Getz v. Brubaker, 25 Pa. Sup. Ct. 303; 27 Cyc. ing the employment of persons between the
children under 14 years of age, and forbidd112."
ages of 14 and 16 years in certain specified In VcNabb v. Clear Springs Water Co., occupations and in others permitting their 239 Pa. 502, the meaning of the word "es employment under certain restrictions, it is tablishment” as used in the Factory Act of but reasonable to assume our legislators 1905, was under discussion and Mr. Justice deemed it necessary to declare the CompenElkins, speaking for the Court, said: sation Act applicable to persons "lawfully
employed.” The Act of Vay 13th, supra, length from Hrabchak v. D. &. H. Co., and declares it unlawful to employ, (a) minors says that where compliance with the Act under the age of 14; (b) minors between |(1915) is possible it is the only justification the ages of 14 and 16 in certain occupations, whicn the law will accept. In Jones v. and (c) in permitted occupations between American Caramel Co., 225 Pa. 644, Mr. said ages, without first obtaining an employ- Justice Brown says: ment certificate. The logical conclusion “The legislative mandate is that machinery from defendant's contention is, "the Work- of every description shall be properly guardmen's Compensation Act applies to all em- ed, and customary disregard of this is but ployes regardless of age." It ihis condition customary negligence rendering everyone is sustained it emasculates the Child Labor guilty of it responsible for the consequences Act to which attention has just been called, resulting directly and solely from it." by declaring lawful that which, at the same The several Acrs relating to the general session, was made unlawful. Not only so, question herein discussed are either mandabut in the face of positive prohibitions in tory or inhibitory or both. Three parties one Act the Court is asked to hold that in are interested in and affected by these the other the legislature intended to, and statutes--the employer, the employe, and did in fact, impose an inhibited contract the State; and the Compensation Act, referupon persons incapable of making any con-Iring as it does, to parties legally competent tract. For if the word "employe" includes, / to contract, must not be construed as desliterally, "all natural persons" and one who tructive of statutes enacted for the protection is employed contrary to law is declared an of employes of whom many are under legal employe wishin the meaning of the Com- disability. pensation Act, a child under 14 years of age The State is vitally interested in the may make a valid contract of employment.physical, mental and inoral welfare of its A construction which leads to such resulis children and has from time to time enacted cannot be adopted. Nor can it be held that laws for their protection. These laws are because Section 23 of the Child Labor Act the garnered fruits of experience. An provides a penalty for violation thereof, an eminent educator has said: “No social conemployer is relieved from ijability in damn-' science ever was or can be static. The ages; S:ehle v. Jaeger Automatic Machine almost unanimous testimony of human exCo, 220 Pa. 617. This case came before perience shows that the lawmaker does not the Supreme Court a second time, 225 Pa. precede but follows the developing social 348, and the Court then said the father and conscience. What the law-giver enacts into son could recover damages.
formal precept or law must prev ously have It is held in Kelliher v. Brown & Co., proved i's worth in the cllective experi242 Pa. 499, that the provisions of the ence." Keeping in mind the trend of legisFactory Act of May 2, 1905, P. L. 352, lacion relating to child labor, the conclusion requiring the owner to provide belt-shifters, is, it seems to me, irresistable that our legis. is mandatory and in Valjaco v. Carnegie lature, notwithstanding the comprehensive Steel Co., 226 Pa. 514, that the provisions terms used in defining "employe,” had in of the same Act requiring that machinery be mind such persons only as are by law capasafeguarded cannot be impliedly waived, ble to make valid agreements. The lanMr. Justice Potter saying:
guage employed in Sections 301 and 302 “In Pennsylvania we are committed to sustains this view. Section 301 refers to the view that the requirements of a statute employer and employe who shall by "agreeadopted in the exercise of the police powers ment" accept the provisions of Article 3, and of the State for the protection of its citizens Section 302, says: cannot be impliedly waived by the parties to "In every contract of hiring the contract of employment."
press or implied
it shall be conThis statement of the law is adopted by clusively presumed that the parties have acthe Superior Court in Hrabchak v. D. & cepted the provisions of article three of this H. Co., 54 Sup. Ct. 626, in which Rice, P. act and have agreed' to be bound thereby; J., after quoting the above adds: “Particu- unless there be at the time of the making, larly is this true of statutory provisions in- renewal or extension of such “contract' an tended for the protection of children." In express statement in writing from either party Krutlies v. Bulls Head Coal Co., 249 Pa. to the other that the provisions of article three 162, Mr. Justice Moschzisker quotes at of the act do not apply."