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the said Eleanor Rodman, and that his error "was not known or discovered until daughter was, in March last, fifteen years old, and has been employed in the Silk Mills of the Shehli Silk Mills Corporation, for which service she is receiving nine dollars per week. For these reasons, he asks for the revocation of the said decree. In an 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 no depositions have been taken, we must assume that this latter claim is correct.
issued by the register, a bond was filed by the petitioner and an inventory was made and filed. If a renunciation was filed and proof of death submitted these papers are probably on file, and neither copies of these papers, or any other papers, are attached to the petition so that it could be ascertained what corrections should be made in this record.
O. C. of
This application should have been made
Of course, the defendant is no longer liable for the maintenance of his late wife, a legal separation having been decreed between them. But he must support his child. As she is only earning from $3.00 to $3.50 per week, it is necessary for him to add to this amount for her proper maintenance. 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 week from this date, on condition that all the back money be paid. To this extent, we make this rule absolute.
Rule made absolute.
Letters of administration are improvidently granted when the proofs of death were made in the name of a man who did not exist; that letters were granted in that name upon the petition of a woman who was not the widow of a man of that name, While it is possible for error of this charSchuylkill Co. acter to be corrected in record papers upon proof after proper notice, larger difficulties lie in the path of correcting the bond filed so that its value as a protection to the estate may not be impaired.
The petition is dismissed.
Smith's Estate Error in Name of Decedent-Jurisdiction The register of wills has jurisdiction in all matters relating to letters which have been issued improvidently; error in the name of the decedent may be corrected by him.
E. W. Shoemaker for Petition.
after the appraisement of the estate had been made and filed of record."
The prayer of the petition is that an order issue directed to the register to correct the record to "conform to the true facts" therein set forth.
It is also alleged that there was error in the first name of the decedent and that said
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 the 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 under the Act of April 20, 1905, P. L. 239, and citation was granted. HELD, that judgment must the register as being the name of the decedent. be entered against the respondent.
The petition further states that the widow, Minnie Smith, renounced her right to administer in favor of Thomas H. Snyder, who filed his bond for the faithful performance of his duties as adminstrator.
The facts plainly disclose that the petitioner is the owner of the real estate in question, having Orphans' Court, and from all the facts, he has a his title through an order and decree of the present right of the possession thereof.
Citation issued to Howard Bollinger, commanding him to appear and answer and 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.
A. C. Wiest for petition.
January 7, 1918. Ross, J.-This case was argued before the Court upon the petition of Frank M. Gettel, and the answer thereto of Howard Bollinger.
The admitted facts gathered from those pleadings are as follows:
8. Subsequently, the said administratrix 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.
2. On the 5th day of September, 1916, letters of administration were granted by the Register of Wills of said York County, to Rebecca Bollinger.
3. Subsequent to the granting of said letters of administration, there was an agreement made with Howard Bollinger, the present respondent, to sell to him the said real estate for the sum of $8100.00.
4. On the 12th day of February, 1917, said administratrix presented to this Court her petition showing, among other things, that the personal estate of said Jacob Bollinger, deceased, is insufficient to pay his debts, and the necessity for the sale of his real estate to pay the debts of said decedent, and praying the Court to authorize, decree and approve a private sale of the said real estate to Howard Bollinger for the sum of $8100.00, for the purpose of paying the debts of said decedent: thereupon the Court ordered that a private sale be authorized, decreed and approved, as prayed for, on Monday, March 12th, 1917, at 10 o'clock A. M., unless exceptions be filed and a substantially larger offer therefor be made at, or before that time.
Gettel, for the price and sum of $8500.00,
5. In due time exceptions were filed and a substantially larger offer was made for the said real estate. After a hearing, on March 20th, 1917, the Court made an order and decree refusing to decree and confirm said private sale, and in accordance with the order of the Court, the exceptant and bidder secured his bid for the said real estate for $8500.00, and a public sale thereof was ordered by the Court on the 26th day of March, 1917, to be held within two hundred days from the said 20th of March, 1917
6. In accordance with the order of the Court, the said Administratrix advertised the said public sale of said real estate, and
8. After the said Howard Bollinger had agreed to purchase the said real estate for the price or sum of $8100.00 and before said public sale, he entered upon said premises and tract of land and took possession thereof, and there remains and claims possession thereof, although he has had due notice of the legal proceedings in the Orphans' Court of York County, Pa., and of the sale and conveyance under and by virtue of said Orphans' Court proceedings of the said real estate to the said Frank M. Gettel.
The petitioner, in order to obtain his legal possession of the real estate so purchased by him at a judicial sale invokes the Act of General Assembly, entitled "An Act providing for and defending the rights, remedies, duties, and liabilities of purchasers of real estate at judicial sales, and of their grantees, heirs, and devisees thereof," approved the 20th day of April, 1905, P. L. 239.
It will be noticed by reference to the allegations in the answer, that the petitioner's averments are not controverted and that no material new matter is advanced by the answer, as replied to by the petitioner's replication, so that under the 8th and 9th sections of the Act of Assembly, no jury trial having been requested, the matter was properly before the Court on the pleadings; Spang v. Mattes, 253 Pa. 101.
The facts plainly disclose that the petitioner is the owner of the real estate in question, having his title through an order and decree of the Orphans' Court, and from all the facts, he has a present right of the possession thereof. Therefore, under the 12th section of the said Act of Assembly, the Court,
Enters judgment in favor of the petitioner, Frank M. Gettel, at the costs of Howard Bollinger, the respondent.
Plaintiff's statement, in numbered parapraphs, set forth that the contract was in writing; that plaintiff resided in York; that defendant was a beneficial association in York; decedent's membership and death; designation of plaintiff as beneficiary; authority for such designation: notice and proof of death and failure of payment by defendant. HELD, that a motion to strike off the statement as not in conformity with the Practice Act of 1915 must be refused.
Where the plaintiff's statement is uniform and clear, every defence whether of fact or of law, must be clearly set up in the affidavit of defence. Allegations that the statement "presupposes and rebuts theories of the defence," and that to answer the statement would require the defendant "to divulge its entire defence, to answer matters that may not be material to the issue and to argue matters that are questions of evidence," are beyond comprehension and cannot be considered at this time.
S. B. Meisenhelder and A. W. Hermann for motion.
K. W. Aitland, contra.
January 7th 1918. Ross, J.-The statement in this case is intended to conform to the provisions of the "Practice Act, 1915."|
The defendant in the affidavit of defense, says that it "does not conform to the provisions of the Act" in that,
1. It "is not in concise and summary form of the material facts on which the plaintiff rests her case." 2, That "it introduces apparently all the evidence of the plaintiff's 3, That it "contains conclusions of law." 5, That it "presupposes and rebuts theories of the defence." 6, That "if defendant is required to file an affidavit of defence in accordance with the Act, to the statement of claim as filed, ***** the defendant will be obliged to divulge its entire defence, to answer matters that may not be material to the issue in this case and to argue matters that are questions of evidence."
summary of the material facts relied upon by the plaintiff.
Those facts seem to be embodied in separate paragraphs which together form a chronological recital of the facts which the plaintiff is bound to prove at the trial, if the defendant denies them.
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.
No. 201, August Term, 1917.
An inspection of the plaintiff's statement leads to the conclusion that it is a concise
Each of the paragraphs can readily be denied or affirmed by the defendant. If denied, the plaintiff, of course, must produce proof at the trial; but they seem to be such plain allegations of fact, that the only inference to be drawn is that they are true, unless they are denied by the defendant as specifically as they are stated by the plaintiff.
It is our opinion, that the Act of 1915 means that where the plaintiff's statement is uniform and clear, every defence whether of fact or of law, must be clearly set up in the affidavit of defence.
The 1st, 2nd, 3rd, and 4th reasons raised by the defendant's affidavits are therefore dismissed.
The 5th and 6th reasons given by the defendant are beyond comprehension and therefore cannot be further considered at this time.
The defendant is ordered to file its affidavit of defence within fifteen days from this date.
C. P. of
Allegheny Co. Ayres et al. v. John Dunlap Co. Workmen's Compensation--Minor s--Action at Law - Liability of Employer-Child's Labor Act of May 13, 1915, P. L. 286. One who employs a minor contrary to the Child's Labor Act of May 13, 1915, P. L. 286, is liable in damages for injuries to such employe in an action at law. Such an employe is not within
the Workmen's Compensation Act of 1915.
The Workmen's Compensation Act of 1915, referring as it does to parties legally competent to contract, must not be construed as destructive of statutes enacted for the protection of employes of whom many are under legal disability, so that the Compensation Act does not deprive such employes of their rights at common law.
A statutory demurrer under the Practice Act
of 1915 was overruled in an action for damages for injuries received by a minor while employed contrary to the Child's Labor Act of May 13, 1915, P. L. 286, in that such an employe was not sation Act, which does not vest minors with within the provisions of the Workmen's Compen
i power to contract.
"After all, it is a question of legislative intention and since that intention was written into the very first section of the act in Eichenauer and James H. Gray, sent case, a construction giving the act a language broad enough to include the premore restricted meaning would make an arbitrary distinction not warranted by the language used."
E. T. Adair and R. P. & M. R. Marshall, for plaintiff. Rose for defendant.
January 7, 1918. CARPENTER, J.-The question of law raised by the affidavit of defense is-Does the Workmen's Compensation Act of 1915 preclude recovery of damages by the plaintiff's in a common law action?
I have quoted at length, that no misapprehension may exist as to the ground upon which my conclusion is based.
It is contended by counsel for defendant that inasmuch as the legislature has, in the Workmen's Compensation Act, defined the word "employe" the court is bound to adopt
The facts out of which the question arises, as set forth in the statement, are: Thomas Ayres, Jr., when a minor fifteen years of 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 court and counsel state they have not found any decision in this State in which it has been discussed. Assuming, as we must, that plaintiffs' statement presents a cause of action at common law, the effect of the statute is, alone, before the Court. The Act defines certain words and phrases used therein. The power of the legislature, in this particular, is not questioned and is expressly recognized in McElhone v. Philadelphia Quartette Club, 53 Sup. Ct., 263, opinion by judge Henderson, in which the court say:
"The term 'employe' as used in this act is declared to be synonymous with servant and includes all natural persons who perform services for another for a valuable consideration," etc.
This is a comprehensive definition and if taken literally embraces minors under fourteen years of age whose employment "in and about or in connection with any establishment" is expressly prohibited by the Act of May 13, 1915 (P. L. 286), and minors. under 16 years of age who, by Section 5 of the Act, are prohibited employment in operchines used in sheet metal manufacturing. ating or assisting in operating stamping maSection 8 of the same act provides that before any minor under the age of 16 years shall be employed, permitted or suffered to work in or about or in connection with any establishment or in any occupation, the perkeep on file an employment certificate. In son employing such minor shall procure and have been enacted which in their general many States workmen's compensation laws scope and purpose are similar to ours, but in
it used certain words words therein contain
ed, and that the legislature has an inherent right to prescribe the legality of its own definition or language. A construction put upon an act of the legislature by itself, by
means of a provision embodied in the same, a large number the words "lawfully employthat it shall not be construed in a certain ed," "legally permitted to work under the designated 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. v. Curry, 4 Pa. Sup. Ct. 356; Getz v. Brubaker, 25 Pa. Sup. Ct. 303; 27 Cyc.
"In the construction of a statue, words, if of common use, are to be taken in their natural, plain, obvious and ordinary significance. But it must be conceded that it is clearly within the power of the legislature to declare in the statute the sense in which
acted a law forbidding the employment of Having, at the same session (1915), enchildren under 14 years of age, and forbidding the employment of persons between the ages of 14 and 16 years in certain specified
112." In McNabb 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: isation Act applicable to persons "lawfully
employed." The Act of May 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." If this 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 Acts 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-ring 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 within 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 moral welfare of its A construction which leads to such results 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 iiability in dam-science ever was or can be static. The ages; Stehle 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 previously have It is held in Kelliher v. Brown & Co., proved i's worth in the collective experi242 Pa. 499, that the provisions of the ence." Keeping in mind the trend of legisFactory Act of May 2, 1905, P. L. 352, lation relating to child labor, the conclusion requiring the owner to provide belt-shifters, is, it seems to me, irresistable that our legisis 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 sustains this view. Section 301 refers to employer and employe who shall by "agreement" accept the provisions of Article 3, and Section 302, says:
"In Pennsylvania we are committed to the view that the requirements of a statute adopted in the exercise of the police powers of the State for the protection of its citizens cannot be impliedly waived by the parties to the contract of employment."
This statement of the law is adopted by the Superior Court in Hrabchak v. D. & H. Co., 54 Sup. Ct. 626, in which Rice, P. J., after quoting the above adds: "Particularly is this true of statutory provisions intended for the protection of children." In Kruthies v. Bulls Head Coal Co., 249 Pa. 162, Mr. Justice Moschzisker quotes at
"In every contract of hiring press or implied it shall be conclusively presumed that the parties have accepted the provisions of article three of this act and have agreed' to be bound thereby, unless there be at the time of the making, renewal or extension of such 'contract' an express statement in writing from either party to the other that the provisions of article three of the act do not apply."