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November 5, 1917. NEWCOMB, J.-The Referee awarded compensation to the widow and children of one Harry Siglin who came to his death by accident while in defendant's employ. The award was affirmed by the
The act does not vest in minors power to Whether it applies to persons over 16 years of age is not the question. question is: Does it protect from suit at common law an employer who engages the services of a minor contrary to law? To this question alone the arguments of counsel were directed and other and important questions which might have been raised were not considered. Keeping in view the manifest purpose in enacting laws relating to and directly affecting employer and employe, and especially the purpose to safeguard children under 16 years of age, the irresistable conclusion is, the words "all natural persons" as used in Article 1, Section 104, of the Workmen's Compen- Board of Compensation and from that desation Act must be construed with reference fendant takes this appeal. Deceased was to, and as affected by, the statutes relating fatally hurt by a fall from his employer's to the employment of minors. Attention motor truck, on its return from an out-ofhas been directed to the phraseology of work- town delivery of goods, in charge of a men's compensation acts in other States and driver to whom deceased was a helper. He to decisions of the Supreme Courts of West was standing on the running board, or at Virginia and New Jersey, whose statutes are least with one foot on the board, and was quite similar to our own, insofar as they re- thrown off by a jolt occasioned by an oblate to the question now being discussed. In struction in the road. The driver and two Rhoades v. Coal Co., 90 S. E. Rep. 796, the girls on the seat were not disturbed by the Supreme Court of West Virginia held that jolt. Deceased had voluntarily given up a minor over 14 and under 16 years of age his seat and taken to the running board, in could not maintain a common law action but order to give the girls a ride when they must proceed under the Compensation Act. were overtaken on the road. That circumIn Hetzel v. Wessen Piston Ring Co, 98 stance gives rise to the question raised by Atl. Rep. 306, the Court of Errors and Ap- appellant, viz.: whether deceased was at peals of New Jersey held that a minor em- that particular time in the course of his employed in violation of the Factory Act might ployment, to which some color is lent by the claim damages at common law. fact that of his own volition he had stopped the car, given up what proved to be a place of safety and taken one obviously of less safety, not in furtherance of the master's business but to help the girls on the way home from their work.
I have not undertaken to analyze or weigh these conflicting opinions, the views which I have expressed being the result of our own act and the decisions of our Appellate Courts, which I think clearly indicate the general principles of law involved and the rules by which the statute in question should be construed.
Being of opinion that the Workmen's Compensation Act does not preclude plaintiffs, the affidavit of defense is adjudged insufficient. Defendant may, within fifteen days, file a supplemental affidavit, sec leg.
C. P. of
Siglin et al. v. Armour & Co. Workmen's Compensation Law--Employe riding running board of motor truck.
One employed as helper to the driver of a delivery motor truck suffered an injury while! riding on the running board after giving up his seat which proved to be a place of safety-to
some girls overtaken en route: HELD, that while he might have been guilty of contributory negligence he was not at the time outside "the course of his employment," and therefore not barred from relief under the Compensation Law.
the Workmen's Compensation Board.
Scragg, Scragg & Scragg, for Plaintiff. Warren, Knapp, O'Malley & Hill for Defendant.
Appeallant takes the negative and its contention is supported by a very able argument; but the impression remains that it only convicts deceased of contributory negligence which can avail nothing in cases of this kind. Had he suffered an injury while on the ground for the purpose of taking on the passengers, a different question would be presented. But having resumed his appointed journey, he was no doubt in the course of his employment thereafter, no matter in what part of the truck he placed himself. The finding of the Referee having been affirmed by the Board, the burden must be on the appellant to clearly establish the alleged error, and of that we are not con
The appeal is accordingly dismissed.
Work Legal Record
Vol. XXXI THURSDAY, FEBRUARY 14, 1918. No 40.
Vandersloot v. Pennsylvania Water &
while the the lands, tenements and hereditaments
HELD, that the motion must be granted.
The bill makes it plain that the defendant was lawfully incorporated under the laws of the State of Pennsylvania; if it has not properly or legally pursued its franchise as conveyed to it by the act of incorporation there exists some remedy at law; either by ejectment proceedings, or otherwise, according to the irregular or illegal encroachment.
As only a small portion of the dam is in this county the Court has no authority to direct service of process upon a non-resident.
No. 1, October Term, 1916. Motion of defendant to set aside and vacate order of service and service of amended bill.
On, to wit, September 28, 1916, John E. Malone and Stewart and Gerber, Esqrs., appeared in your Honorable Court for the Pennsylvania Water & Power Company, Defendant, de bene esse, as per paper filed. It is quite plain from a perusal of the amended On, to wit, October 16, 1916, the said bill that the ultimate object of the plaintiff is to have this Court make an order which in effect solicitors for Defendant moved to vacate the would be to change the purpose for which the order of Court and set aside service of the dam was constructed, presumably in accordance | bill filed. with its corporate rights.
For the questions of fact and law involved in this case, see Vandersloot v. Pennsylvania Water & Power Co., 30 YORK LEGAL RECORD 189.
The Court, Ross, J., having refused to set aside the service, an appeal was taken and the decree of the court below was reversed; Pennsylvania Water & Power Co.'s Appeal, 31 YORK LEGAL RECORD 41.
February 4th, 1918. Ross, J.-On the 15th day of October, 1917, the above named plaintiff filed the following petition:
"TO THE HONORABLE, THE JUDGES OF SAID COURT:
Plaintiff then filed an amended bill, confining his allegations of damages entirely to those sustained by lands and tenements in York County, and asking for an order of service on the corporation defendant at its offices in New York City and its plant in Lancaster County, which order was granted
and service made.
Defendant moved to have the order and service set aside.
"The petition of John Edward Vandersloot, the above named Plaintiff, respectfully represents:
in the above entitled suit, together with a On September 13, 1916, he filed his bill petition for an order of service, whereupon your Honorable Court ordered and decreed that service of the Bill be made upon the Pennsylvania Water & Power Company in the manner directed by the Act of April 6, 1859.
29th, 1916, returns of service were made On, to wit, September 18, and September and filed.
On, to wit, February 12, 1917, the said motion was refused in an opinion filed by the Honorable N. Sargent Ross, Judge.
On March 7, 1917, a decrce was entered by your Honorable Court refusing to vacate or annul the order of service, and requiring the Defendant to answer Plaintiff's Bill in thirty days or decree pro confesso.
On, to wit, March 21, 1917, exception of the Defendant to the decree of March 7,
1917, was dismissed.
On, to wit, April 7, 1917, an appeal was taken to the Supreme Court on behalf of the Defendant from the said decree of the Court entered March 21, 1917, dismissing rule to set aside order of service and return of service and manner of service.
The said appeal in the Supreme Court was to No. 132 January Term, 1917, and was decided on, to wit, June 30, 1917, in an opinion by Moschzisker, Justice; in which the order of the Court below was
reversed and said service of the Bill set aside. The reason for the said judgment of the Supreme Court is summarized in the said opinion as follows:
"In the case at bar it will be observed John E Malone and Stewart & Gerber that the prayers for relief are not confined for rule.
to property alleged to be within the jurisdiction of the Court; but, on the contrary,
Niles & Neff, contra.
Your petitioner further showing that the acts of the Defendant, in York County, as alleged in the said amended Bill, are in crease and aggravation of the trespass upon his property in York County caused by raising of the height of that portion of Defendant's dam which is in York County by the erection of flash boards, whereby the crest of the Defendant's dam in York County is raised, and the damage to Plaintiff's property in York County is increased; which acts and additional trespasses have been by the Defendant done since the filing of the said original Bill.
Your petitioner further showing that the amended Bill offered shows substantial cause for the relief prayed for, that no answer has been filed to the original Bill, and that in accordance with the Supreme Court Rules, to wit, Rule 48, and the Law of Pennsylvania, to wit, Section 2 of the Act of May 4, 1864, P. L. 775, he is entitled to the permission prayed for in this petition.
And he will ever pray.
Your petitioner further presents with the said amended Bill his petitition for an order that service of the amended Bill in this case be made upon the Defendant in the manner directed by the Act of April 6, 1859, and praying that the proper order upon said petition in accordance with the provision of the said Act be made by your Honorable Court.
That the defendant corporation has a in-place of business in Lancaster County,, Pennsylvania, at Holtwood, where its power house and a place of business, is located.
That the said defendant corporation hast no office or place of business in actual opera-. tion in the County of York, which is the County in which the cause of action arose, and no member of its Board of Directors or other officer, is a resident of the County in which the cause of action arose.
order and direct that the Amended Bill filed. Plaintiff prays your Honorable Court to in the said suit this day in the said Court, together with the notice to appear and file answer, secundum regulum, be served upon the said defendant, out of the jurisdiction of the said Court, wherever it or its officers may be found, as in such cases made and provided according to law.
JOHN EDWARD VANDERSLOOT Sworn and Subscribed to before me this 15th day of October, 1917. 18 (Seal of ) Charl's A. May, (Notary Public) Notary Public My commission expires #3
Feb. 27, 1921.
"And now, to wit, October 15th, 1917, upon motion of Niles & Neff, Solicitors for the Plaintiff in the above entitled suit, it is ordered and decreed that service of the Amended Bill in this case be made upon the said Pennsylvania Water and Power Company, the defendant, in the manner directed by the Act of April 6, 1859, and that said Defendant cause an appearence to be entered for it in the Prothonotary's Office of York
County, Penna. within 15 days after service of the said Amended Bill, and file its answer within 30 days after the said service of the said Amended Bill upon it; and that a certified copy of this order be also served upon it, with a copy of the Plaintiff's Amended Bill, agreeable to the said Act of Assembly. By the Court, N. SARGENT Ross, Judge. The service and service of amended bill having been made and the returns of the Sheriff having been duly filed, the following motion was presented to the Court on the 30th day of October, 1917:
"To the Honorable, the Judges of said Court: "The Pennsylvania Water and Power Company, the above named respondent, by its Solicitors, John E. Malone, Esq, and Stewart & Gerber, Esqs, respectfully move the Court to vacate and annul the order of service made October 15, 1917, ordering and directing service of the bill filed in this case upon the defendant in the manner directed by the Act of April 6, 1859.
3rd. That no proper or legal service is shown by the Sheriff's return upon the respondent company or any of its officers. John E. Malone, Stewart & Gerber,
Solicitors for Respondents."
A rule was immediately granted directing the plaintiff to show cause, if any he had, why that motion should not be allowed. The rule was returnable to the first Monday of December, 1917.
The plaintiff duly filed an answer by which he insisted that the services asked to bd set aside, were valid.
The contention was subsequently argued on petition and answer.
A careful examination of the amended bill and the prayers based thereon, leads to the conclusion that the present contention is controlled by the ruling of the Supreme Court (Vandersloot v. Pa. W. & P. Co., 259 Pa. 104). The prayers, are so drafted that the Court is asked to make such orders and decrees as would only pertain to the physical construction of the dam which exists in York County, yet it is quite obvious that any such order or decree would necessarily affect the entire dam of the dedefendant, the largest portion of which, is outside the jurisdiction of the Court.
The first prayer is as follows:
And also to set asi le the order to appear within fifteen days after the service of the bill and to answer within thirty days after the service thereof; and also to set aside the service of said bill made by the Sheriff of York County upon Charles E. F. Clarke, President and Treasurer of the Pennsylvania Water and Power Company, at the office of the Pennsylvania Water and Power Company, at 24 Exchange Place, New York City, on the 18th day of October, 1917; and also set aside the service of the bill made by C. S. Garber, Sheriff of Lancaster County under a deputization from William D. Haas, Sheriff of York County, upon F C. Stabley, the alleged agent of the defendant and the person for the time being in charge of the office and place of business has not properly or legally pursued its franof the respondent, the Pennsylvania Water chise as conveyed to it by the act of incorand Power Company, at Holtwood, Lan-poration there exists some remedy at law; caster County, Pa., on the 18th day of either by ejectment proceedings, or otherwise, October, 1917. For the following reasons: according to the irregular or illegal en
"That this Court examine, inquire and ascertain whether the defendant does in fact possess the right of francise to do the acts within the County of York from which the alleged injury to the plaintiff's private rights results within the County of York," &c., &c. The bill makes it plain that the defendant was lawfully incorporated under the laws of the State of Pennsylvania; if it
Ist. There is no lawful power or author-croachment; but for the purposes of the ity vested in the Judges of the said Court present inquiry we must assume that it has to direct the service of its process outside of legally pursued its rights as they exist under the State of Pennsylvania under the Act of the franchise which the charter gave to it. April 6, 1859, and the service of the said bill If the prayer is to be construed to mean as made upon Charles E. F. Clarke, Presid- that the plaintiff wants discovery and ac ent and Treasurer of the Company, at 24 count against the defendant, then under the Exchange Place, New York City, is invalid. decision in Wallace v. United Electric Company, et al., 211 Pa. 473, the service. should be set aside.
2nd. That there is no legal authority in the Sheriff of York County to deputize the Sheriff of Lancaster County to serve a bill in equity in the manner shown by the Sheriff's return.
It is quite plain from a perusal of the amended bill that the ultimate object of the plaintiff is to have this Court make an order
which in effect would be to change the pur-j It appeared at the trial that on July 13, pose for which the dam was constructed, 1916, J. W. Kelchner signed and delivered presumably in accordance with its corporate a paper, called in it a bill of sale, in which rights. As was said by Mr. Justice Stewart for the consideration of $1,000, the receipt in rendering an opinion of the Supreme of which he acknowledged, he "does by these Court in the case of Miller v. Cockins, 239 presents bargain, sell, transfer, and deliver" Pa. 566, "It is not to be questioned, ***unto Louis E. Ryder, the plaintiff, two where there is nothing to give jurisdiction | automobiles particularly described "to have other than the fact that some of the prop- and to hold the said cars, or automobiles, erty is within the jurisdiction of the court, unto the party of the second part, its sucand the prayer is for a decree against the cessors and assigns, as collateral security for defendant personally, the Court has no payment of the promissory note for $1,000 authority to direct service of process upon a given by the party of the first part to the non-resident." The prayers in the amended party of the second part on July 13, 1916.” bill now under consideration, when taken in The plaintiff thereupon on the same day connections with the recitals in the bill, are executed a lease for the said automobiles to well described by the language of Mr. said John W. Kelchner for the term of four Justice Moschzicker, in Vandersloot v. Pa. months at the rental of $1.00, with the W. & P. Co., 259 Pa. 104, "they compre- privilege of purchasing the same for $1,000; hend relief affecting the entire dam of the the same to be returned to the lessor, at the defendant; extending into the river beyond expiration of the lease, if the option to purthe limits of York County, and also relief chase has not been exercised during the which, if granted, would require a decree term. In this lease the bill of sale is reagainst the defendant personally." ferred to as having been executed as collateral security for the payment of the note for $1,000 which plaintiff had endorsed.
We are of the opinion that the amended bill does not change the facts as they appeared in that case. The present is not a case for service in accordance with the Act of April 6, 1859, P. L. 387. Therefore, the motion made by the defendant must prevail. The rule granted in this case is made absolute.
The automobiles did not reach Lancaster until some days after the above papers were executed. The testimony was conflicting as to whom they were delivered to and who retained possession of them until they were levied on by the sheriff. This question was submitted to the jury, who found that they were delivered to and remained in the possession of John W. Kelchner, and that they never were in the possession of the plaintiff, so that for the purpose of disposing of these rules we must consider that as a fact.
C. P. of
Ryder v. Jenkins Bill of sale as collateral-Possession tel mortgage--Creditors of vendor.
The alleged bill of sale is a chattel mortgage of the automobiles. They were pledg
Where the maker of a promissory note gives as collateral security a bill of sale for two automobiles which are leased back to him and remain in. his possession, the transaction is in effect a chattel mortgage without possession and voided by Kelchner to the plaintiff as collateral against creditors of the mortgagor. security for his endorsement of the $1,000 note. That chattel mortgages, or pledges of personalty, without delivery of possession, are not valid in this state except as to certain property, which does not include auto
Rules for a new trial and for judgment for plaintiff n. o. v.
B. C. Atlee and B. F. Davis for rules. Chas. W. Eaby, contra. January 5, 1918. HASSLER, J.-The mobiles, as against the owner's creditors, is question raised in the reasons for a new trial | well settled. In Bismark Building & Loan in this case is the same that must be passed | Association v. Bolster, 92 Pa. 123, Judge on in disposing of the rule for judgment Trunkey says, "A mortgage of personal non obstante veredicto, so that we will con- property in some respects is like a pawn or sider both rules together. pledge. Without delivery of possession to the mortgagee, it is a nullity as to creditors, unless made under some statute; but if possession be given, the mortgagee may hold it until his debt is satisfied." In Barlow v. Fox, 203 Pa. 114, where the owners of personal property gave a bill of sale to a
This issue was framed to try the title to two automobiles, which were levied upon as the property of John W. Kelchner, by virtue of an execution issued by D. J. Jenkins, the defendant, and which were claimed by the plaintiff.