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The act docs not vest in minors power to some girls overtaken en route: Held, that while contract. Whether it applies to persons over
he might have been guilty of contributory negli16 years of age is not the question. The gence he was not at the time outside “the course
of his employment," and therefore not barred question is: Does it protect froin suit at from relief under the Compensation Law. common law an employer who engages the services of a minor contrary to law? To this the Workmen's Compensation Board.
Appeal by defendant from judgment of question alone the arguments of counsel were directed and other and important questions
Scragg, Scragg & Scragg, for Plaintiff. which might have been raised were not con
Warren, Knapp, O'Malley & Hill for sidered. Keeping in vi:w the manifest pur- Defendant. pose in enacting laws relating to and directly November 5, 1917. NEWCOMB, J.-The affecting employer and employe, and especially Referee awarded compensation to the widow the purpose to safeguard children under 16 and children of one Harry Siglin who came years of age, the irresistable conclusion is, the to his death by accident while in defendant's words "all natural persons" as used in Article employ. The award was affirmed by the 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 I have not undertaken to analyze or the car, given up what proved to be a place weigh these conflicting opinions, the views of safety and taken one obviously of less which I have expressed being the result of safety, not in furtherance of the master's
own act and the decisions of our Ap-business but to help the girls on the way pellate Courts, which I think clearly indi- home from their work. cate the general principles of law involved Appeallant takes the negative and its conand the rules by which the statute in ques- tention is supported by a very able argument; tion should be construed.
but the impression remains that it only conBeing of opinion that the Workmen's victs deceased of contributory negligence Compensation Act does not preclude plain- which can avail nothing in cases of this kind. tiffs, the affidavit of defense is adjudged Had he suffered an injury while on the insufficient. Defendant may, within fifteen ground for the purpose of taking on the pasdays, file a supplemental affidavit, sec leg.
sengers, a different question would be pre
sented. But having resumed his appointed C. P. of
Lackawanna Co journey, he was no doubt in the course
of his employment thereafter, no matter in Siglin et al. v. Armour & Co.
what part of the truck he placed himself. Workmen's Compensation Law---Employe The finding of the Referee having been riding running board of motor truck.
affirmed by the Board, the burden must be One employed as helper to the driver of a leged error, and of that we are not con
on the appellant to clearly establish the aldelivery motor truck suffered an injury while riding on the running board after giving up his
vinced. seat-which proved to be a place of safety--to The appeal is accordingly dismissed.
THURSDAY, FEBRL'ARY 14, 1918.
February 4th, 1918. Ross, J.-On the Work Legal Record
15th day of October, 1917, the above named plaintiff filed the following petition :
“To the HONORABLE, THE JUDGES OF
“The petition of John Edward VanderPower Co. No. 2.
sloot, the above nained Plaintiff, respectEquity-- Jurisdiction--Service out of County, fully represents:
On September 13, 1916, he filed his bill Plaintiff presented his petition, alleging that while the the lands, tenements and hereditaments in the above entitled suit, together with a concerning which suit was brought are located in petition for an order of service, whereupon York County, the defendant corporation had no your Honorable Court ordered and decreed office or place of business in actual operation in lihat service of the Bill be made upon the said county; but averred that defendant's busines offices were in New York City, and that it had a Pennsylvania Water & Power Company in place of business in Lancaster County, and further the manner directed by the Act of April 6, prayed that service might be made at those places. 1859. The petition was granted and service made,
On, to wit, September 18, and September whereupon defendant inored to have it set aside. Held, that the motion must be granted.
29th, 1916, returns of service were made The bill makes it plain that ihe defendant was and filed. lawfully incorporated under the laws of the State On, to wit, September 28, 1916, John E. of Pennsylvania; if it has not properly or legally Malone and Stewart and Gerber, Esqrs., pursued its franchise as conveyed to it by the act of incorporation there exists some remedy at law; appeared in your Honorable Court for the either by ejectment proceedings, or otherwise, ac- Pennsylvania Water & Power Company, cording to the irregular or illegal encroachment. Defendant, de bene esse, as per paper filed.
It is quite plain from a perusal of the amended bill that the ultimate object of the plaintiff is to
On, to wit, October 16, 1916, the said 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. As only a small portion of the dam is in this
On, to wit, February 12, 1917, the said county the Court has no authority to direct service motion was refused in an opinion filed by of process upon a non-resident.
the Honorable N. Sargent Ross, Judge. No. 1, October Term, 1916.
On March 7, 1917, a decrce was entered Motion of defendant to set aside and I by your Honorable Court refusing to vacate vacate order of service and service of amend or annul the order of service, and requiring ed bill.
the Defendant to answer Plainsiff's Bill in For the questions of fact and law involved thirty days or decree pro confesso. in this case, see Vandersloot v. Pennsylvania
On, to wit, March 21, 1917, exception Water & Power Co., 30 York LEGAL of the Defendant to the decree of March 7, RECORD 189.
1917, was dismissed. The Court, Ross, J., having refused to
On, to wit, April 7, 1917, an appeal was set aside the service, an appeal was taken and taken to the Supreme Court on behalf of the decree of the court below was reversed; the Defendant from the said decree of the Pennsylvania Water & Power Co.'s Appeal, Court entered March 21, 1917, dismissing 31 York LEGAL RECORD 41.
rule to set aside order of service and return Plaintiff then filed an amended bill, con
of service and manner of service. fining his allegations of damages entirely
The said appeal in the Supreme Court to those sustained by lands and tenements
to No. 132 January Term, 1917, and in York, County, and asking for an order of was decided on, to wit, June 30, 1917, in service on the corporation defendant at its an opinion by Moschzisker, Justice; in offices in New York City and its plant in
which the order of the Court below was Lancaster County, which order was granted reversed and said service of the Bill set and service made.
aside. The reason for the said judgment of Defendant moved to have the order and the Supreme Court is summarized in the service set aside.
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 jurisNiles & Neil, contra.
diction of the Court; but, on the contrary,
they comprehend relief affecting the entire And he will ever pray. dam of the Defendant extending into the
JOHN EDWARD VANDERSLOOT." river beyond the limits of York County, The amended bill was allowed by the and also relief which, if granted, would re- Court to be filed. At the same time the quire a decree against the Defendant person following petition, affidavit and consequent ally. On this state of facts under the order were filed: authorities just cited, the present is not a "To the Honorable the Judges of the said case for service in accordance with the Act Court: of 1859, supra; and the Court below erred "John Edward Vandersloot, the plaintiff when it determined otherwise."
in the above entitled suit, being duly sworn, Your petitioner, the plaintiff in the above says, that the suit instituted in the said entitled suit, asks leave to file an amended Court is eoncerning lands, tenements and Bill, herewith offered, in which all prayers hereditaments situate and being within the áre omitted and eliminated which are not jurisdiction of the said Court, to wit, in the confined to property alleged to be within Township of Lower Chanceford, York the jurisdiction of this Court, and all relief County, Pennsylvania. which would require a decree against the
That the Pennsylvania Water and Power Defendant personally:
Company, the defendant, is a Pennsylvania In the said amended Bill offered to be corporation, with its business offices and its filed, reference to acts of the Defendant in general officers at 24 Exchange Place, New Lancaster County is only by way of neces
York City. sary narrative and description, and to make
That the said defendant corporation has the acts and things within the County of no office or place of business in actual opera. York, regarding which acts and things said tion in the County of York, which is the County of York the said amended Bill and County in which the cause of action arose, the relief prayed for are exclusively confined. and no member of its Board of Directors or
Your petitioner further showing that the other officer, is a resident of the County in acts of the Defendant, in York County, as
which the cause of action arose. alleged in the said amended Bill, are in in- place of business in Lancaster County,
That the defendant corporation has a crease and aggravation of the trespass upon Pennsylvania, at Holtwood, where its power his property in York County caused by house and a place of business, is located. raising of the height of that portion of Defendant's dam which is in York County by order and direct that the Amended Bill filed.
Plaintiff prays your Honorable Court to the erection of hash boards, whereby the of
in the said suit this day in the said Court, County is raised, and the damage to Plain together with the notice to appear and file tiff's property in York County is increased; answer, secundum regulum, be served upon
of which acts and additional trespasses have been by the Defendant done since the filing
of the said Court, wherever it or its officers
may be found, as in such cases made and of the said original Bill.
provided according to law. Your petitioner further showing that the
John EDWARD VANDERSLOOT, amended Bill offered shows substantial cause Sworn and Subscribed to before me this for the relief prayed for, that no answer 15th day of October, 1917. has been filed to the original Bill, and that
(Seal of ) Charl's A. May, in accordance with the Supreme Court
:7 Rules, to wit, Rule 48, and the Law of My commission expires Pennsylvania, to wit, Section 2 of the Act
Feb. 27, 1921. of May 4, 1864, P. L. 775, he is entitled to
“And now, to wit, October 15:h, 1917, the permission prayed for in this petition.
upon motion of Niles & Neff, Solicitors for Your petitioner further presents with the the Plaintiff in the above entitled suit, it is said amended Bill his petitition for an order ordered and decreed that service of the that service of the amended Bill in this case Amended Bill in this case be made upon be made upon the Defendant in the manner said Pennsylvania Water and Power Com; directed by the Act of April 6, 1859, and pany, the defendant, in the manner directed praying that the proper order upon said peti- by the Act of April 6, 1859, and that said tion in accordance with the provision of the Defendant cause an appearence to be entered said Act be made by your Honorable Court. I for it in the Prothonotary's Office of York
County, Penna. within 15 days after service 3rd. That no proper or legal service is of the said Amended Bill, and tile its an- shown by the Sheriff's return upon the reswer within 30 days after the said service of spondent company or any of its officers. the said Amended Bill upon it; and that a cer- John E. Malone, tified copy of this order be also served upon Stewart & Gerber, it, with a copy of the Plaintiff's Amended Solicitors for Respondents." Bill, agreeable to the said Act of Assembly. A rule was immediately granted directing
By the Court, N. Sargent Ross, Judge. the plaintiff to show cause, if any he had,
The service and service of amended bill why that motion should not be allowed. having been made and the returns of the The rule was returnable to the first Mlonday Sheriff having been duly filed, the following of December, 1917.. motion was presented to the Court on the The plaintiff duly filed an answer by zoth day of October, 1917:
which he insisted that the services asked to "To the Honorable,the Judges of said Court: bd set aside, were valid.
"The Pennsylvania Water and Power The contention was subsequently argued Company, the above named respondent, by on petition and answer. its Solicitors, John E. Malone, Esq , and A careful examination of the amended Stewart & Gerber, Esqs., respectfully move bill and the prayers based thereon, leads to the Court to vacate and annul the order of the conclusion that the present contention is service made October 15, 1917, ordering controlled by the ruling of the Supreme and directing service of the bill filed in this Court (Vandersloot v. Pa. W. & P. Co., case upon the defendant in the manner 259 Pa. 104). The prayers, are so drafted directed by the Act of April 6, 1859. that the Court is asked to make such orders
And also to set asi le the order to appear and decrees as would only pertain to the within fifteen days after the service of the physical construction of the dam which bill and to answer within thirty days after exists in York County, yet it is quite oba the service thereof; and also to set aside the vious that any such order or decree would service of said bill made by the Sheriff of necessarily affect the entire dam of the deYork County upon Charles E. F. Clarke, defendant, the largest portion of which, is President and Treasurer of the Pennsyl- outside the jurisdiction of the Court. vania Water and Power Company, at the · The first prayer is as follows: office of the Pennsylvania Water and Power “That this Court examine, inquire and Company, at 24' Exchange Place, New ascertain whether the defendant does in York City, on the 18th day of October, fact possess the right of francise to do the 1917; and also set aside the service of the acts within the County of York from which bill made by C. S. Garber, Sheriff of Lan- the alleged injury to the plaintiff's private caster County under a deputization from rights results within the County of York," William D. Haas, Sheriff of York County, &c., &c. The bill makes it plain that the upon F C. Stabley, the alleged agent of the defendant was lawfully incorporated under defendant and the person for the time being the laws of the Staʻe of Pennsylvania; if it in charge of the office and place of business has not properly or legally pursued its franof the respondent, the Pennsylvania Warer chise as conveyed to it by the act of incora and 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
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 piaintiff wants discovery and acent 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
2nd. That there is no legal authority in Company, et al., 211 Pa. 473, the service the Sheriff of York County to deputize the should be set aside. Sheriff of Lancaster County to serve a bill It is quite plain from a perusal of the in equity in the manner shown by 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- 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 courr, 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 collaterWe are of the opinion that the amended al security for the payment of the note for bill does not change the facts as they ap- $1,000 which plaintiff had endorsed. peared in that case. The present is not a The automobiles did not reach Lancaster case for service in accordance with the Act until some days after the above papers were of April 6, 1859, P. L. 387. Therefore, the executed. The testimony was conflicting motion made by the defendant must prevail. as to whom they were delivered to and who
The rule granted in this case is made retained possession of them until they were absolute.
levied on by the sheriff. This question was
submitted to the jury, who found that they C. P. of
Lancaster Co. I were delivered to and remained in the pos-
session of John W. Kelchner, and that they Bill of sale as colateral--Possession-Chat- I never were in the possession of the plaintiff
, tel mortgage.-Creditors of vendor. so that for the purpose of disposing of these Where the maker of a promissory note gives as rules we must consider that as a fact. collateral security a bill of sale for two automo- The alleged bill of sale is a chattel mortbiles which are leased back to him and remain in . his possession, the transaction is in effect a ed by Kelchner to the plaintiff as collateral
gage of the automobiles. They were pledgchattel mortgage without possession and void against creditors of the mortgagor.
security for his endorsement of the $1,000 Rules for a new trial and for judgment note. That chattel mortgages, or pledges for plaintiff n. 0. v.
of personalty, without delivery of possession, B. C. Atlee and B. F. Davis for rules. are not valid in this state except as to cerChas. IV. Eaby, contra.
tain property, which does not include auto· January 5, 1918. HASSLER, J.---The mobiles, as against the owner's creditors, is question raised in the reasons for a new trial i 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.
piedge. Without delivery of possession to This issue was framed to try the title to the mortgagee, it is a nullity as to creditors, two automobiles, which were levied upon as unless made under some statute; but if posthe property of John W. Kelchner, by vir- session be given, the mortgagee may hold it tue of an execution issued by D. J. Jenkins, until his debt is satisfied.” In Barlow v; the defendant, and which were claimed by Fox, 203 Pa. 114, where the owners of the plaintift.
personal property gave a bill of sale to a