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symbolical where actual delivery is practicWork Legal Record

able, and if it is not practicable the parties

should leave nothing undone to secure the Vol. XXXI. THURSDAY, FEBRUARY 21, 1918. No 41. public from deception.

Applying these cases to the facts in the trustee acting for a bank to secure the bank present case, we must conclude that the for money advanced on their note, and the plaintiff had no title to the automobiles in trustee leased the property to the original question as against the creditors of John W. owners who obtained possession of it, it was Kelchner, and must, therefore, discharge held that a bill of sale was invalid as to , both rules. The rule for judgment non creditors of the owner of the property. In obstante veredicto and the rule for a new delivering the opinion of the Court, Justice trial are both discharged. Fell says: "When by the action of the parties there has been a separation of the title and possession of personal property, Kohr v. Fox Baking Co. courts will scrutinize the transaction to determine the real intention, and but little

Practice - Statement--Specific Averments. regard will be given to the form which it has taken or the name by which it is called.

Plaintiff's statement alleged damages caused The law is liberal in not requiring an actual by his wife swallowing a pin contained in bread change of possession when it will defeat the manufactured, sold and delivered to her. The lawful purpose of the parties. But there defendant mived to strike off the statement has been no deviation from the general rule the bread or the swallowing of the pin, or the

because it failed to give the date of delivery of that delivery of possession is indispensable value of the wife's services, nor did it allege any to transfer a title, by the act of the owner, negligence on the part of defendant or its emthat shall be valid against creditors. In ployes, or specify any act from which negligence

could be inferred. HELD, that the rule must be Clow Woods, 5 S. & R. 275, which is made absolute. said by Judge Sharswood in McKibbin v. The defendant is entitled to a sufficiently speciMartin, 64 Pa. 352, to be the magna fic averment of the material facts of the case, so charta of our law on the subject, it was de- as to enable it to understand the real nature and

extent of the plaintiff's claim. cided that there is no difference in the appli

It is the apparent purpose of the ‘Practice Act cation of the rule between absolute sales and of 1915" to require that the material facts incontingent sales or mortgages, and that as tended to be proven and relied upon by either to both the retention of possession when party at the trial of the case, shall be specifically

set forth on the face of their respective pleadings, actual delivery is practicable, is a fraud in and that both parties shall thereafter be restricted law. In Jenkins v. Eicheiberger, 4 Watts thereto, and it is the duty of the Court to see that 121, Gibson, C. J., said: “To tolerate a lien its provisions are literally and fully complied severed from the possession by any device with:

Absence of allegations of negligence on the whatever, would be pregnant with all the

part of the defendant or its employees, or no mischiefs of colorable ownership; and to averment of specific facts from which such neglisanction it at the expense of the community gence could be inferred, if presented in an attidavit could be justified but by the accomplishment of defense, might result in a judgment for the

defendant, but they cannot be finally ruled upon of more important objects than individual

on a motion to strike off the statement. accommodation. These decisions have been followed in numerous cases which it is need- No. 6, April Term, 1918. less to cite. In a review of the cases in this

Rule to show cause why Plaintiff's statestate by the American editors of i Smith's Leading Cases, p. 78, it is said: “That mort- ment should not be stricken from the record, gages are within the rule has been expressly decided; and it is now established in Penn

Niles & Neff for rule. sylvania, as a general principle of law, that Stewart & Gerber, contra. by no device whatever, whether of sale and agreement of resale, or by the title at the February 4, 1918. WANNER, P. J.time of the purchase being vested in one This is a rule to show cause why the plainwho is a surety for the purchaser who takes tiff's statement should not be stricken off possession, can a lien be created on personal for non-compliance with the provisions of property separate from the possession of it. Sec. 6 of the “Practice Act of 1915" P. L. The delivery must be actual and not merely 483, which requires that the material facts

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upon which the plaintiff's claim is based whether or not the plaintiff's statement shall be set forth in the statement in a con- shows a good cause of action. If those obcise and summary form. The rules of this jections had been presented in an affidavit Court also provide that the plaintiff's state of defense and sustained by the Court, they ment "shall contain a specific averment of might have resulted in a judgment for the the facts necessary to constitute a good cause defendant, under the provisions of Sec. 20, of action."

i of the “Practice Act of 1915.” But they This is an action of trespass brought by cannot be finally ruled upon by the Court

on this motion to strike off the statement,

, recover damages for injuries resulting to the which does not really raise the question latter from swallowing a pin, contained in

whether or not the plaintiff's cause of action bread which the defendant had sold and forth in the statement with the particularity

is a good one, but only whether it is set delivered to the plaintiff.

required by the “Practice Act of 1915" and The defendant's objections to the plain the rules of this Court; Barto v. Shaffner, tiff's statement are, that it fails to give the 26 Dist. Rep. 97; Ehrenstrom v. Hess, dates of the delivery of this bread to the No. 1, 26 Dist. Rep. 992. plaintiff, or of the swallowing of the pin by the plaintiff's wife, neither does it give the been sufficiently complied with in the aver

As already scen, the Practice Act has not value of the wife's services by the week, month, or otherwise, for the loss of which ments of material facts essential to a recovdamages are claimed, nor does it allege that ery by the plaintiff, and to a proper underany negligence on the part of the defendant standing of the details of the plaintiff's

claim by the defendant. or any of its employees, caused the injury to plaintiff's wife, or specify an act of defend- It is the apparent purpose of the “Practice ant from which negligence could be inferred. Act of 1915" to require that the material

These are material facts, proof of which facts intended to be proven and relied upon at

by either party at the trial of the case, shall a recovery by the plaintiff, and the defend- be specifically' set forth on the face of their ant is entitled to a sufficiently specific aver

respective pleadings, and that both parties ment of the same to enable it to understand shall thereafter be restricted thereto, and it the real nature and extent of the plaintiff's provisions are literally and fully complied

is the duty of the Court to see that its claim. They should, therefore, have been set

with. forth with reasonable certainty in the statement.

excuse for their omission is The rule to show cause is made absolute. contained in the statement itself, and no The plaintiff's statement is stricken from answer has been filed to this rule, denying the record, with leave, however, to file the plaintiff's ability to set them forth therein, another statement in proper statutory form the statement must be held defective with within ten days after the filing of this decree. out them, under the provisions of the Practice Act of 1915, and the rules of this Court. The defendant alleges that it had many

C. P. of

Northampton Co. employees engaged in the making and deliv. McLaughlin v. Lehigh Valley Railroad ery of bread at the time of the sale and delivery of the bread in question in this case,

Company and that unless more accurate dates, and Compensation Appeal Liability under more specific averments of fact are given, an affidavit of defense cannot be framed, or

Federal or State Liability Acis-Burden an intelligent defense made to the plaintiff's of proof. claim.

In an appeal from the Workmen's ComThe defendant's objections that the state the Federal Employers' Liability Act governs the

pensation Board where the only defense is that ment contains no allegation that the negli- case to the exclusion of the State Compensation gence of the defendant or its employees Act, the burden is upon the defendant to prove caused the injury to plaintiff's wife com- the facts necessary to show that the decedent was plained of, and that no specific act of the engaged in interstate commerce at the time of the defendant is alleged from which negligence could be inferred, also raise the question 'yard employee was

2. Where the last duty in which a railroad

seen to be engaged prior to

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his death was upon a car, the entire journey of state car routed to an intrastate point. The
which was intrastate, the fact that the car was only question for the determination of the
being attached to a train which had come from a
point outside of the state, but which was bound to court is: Was the decedent engaged in in-
a point within the state, does not establish that terstate commerce at the time of injury?
the decedent was "engaged in interstate com- The contention of the appellant is that as
merce" at the time of the accident.

this train, which was partly made up in Sur appeal fron decision of Workmen's South Bethlehem, was engaged in interstate (Pa.) Compensation Board.

commerce and McLaughlin was assisting in

the make up of that train, he was, thereW. H. Kirkpatrick and D. H. Wilson, fore, engaged in interstate commerce and

subject to the federal law and not to the for the claimant.

state law. The test, as laid down by the E. J. & J. W. Fox, for defendants.

authorities, of employment in interstate com

merce, is whether the employe when injured January 14, 1918. McKeen, J.—This was engaged in interstate transportation, or is an appeal from the decision of the Work in work so closely related to it as to be men's Compensation Board affirming award practically a part of it. Appellant urges granted by the referee and dismissing the that the case at bar is very similar to the appeal taken by the defendant. John Mc- case of Erie Railroad Company v. Winfield, Laughlin, the husband of claimant, was a 244 U. S. 170, and that the court should member of a yard crew in the employ of the hold that the jurisdiction of the United Lehigh Valley Railroad Company, working States court would obtain and not the jurisin the yard at South Bethlehem, Pennsyl- diction of the state compensation board. In vania. His duties were to throw switches, the Winfield case, a brakeman was engaged shift and couple cars in accordance with in- in a yard which handled both interstate and structions. At South Bethlehem the line of intrastate commerce, and after he had comthe Philadelphia and Reading Railroad pleted his work for the day was crossing the Company from Philadelphia connects with tracks in the yard to go home. He was the main line of the Lehigh Valley Railroad struck by a train and the court held that Company, originating at Jersey City, New the Federal statute applied and that it was Jersey, and going to Wilkesbarre, Pennsyl- not a proper case for the state compensation vania and poin's west. Immediately prior law. The case at bar, however, differs to the accident the yard crew, of which i from the Winfield case in this, the decedent McLaughlin was a member, went to the had completed an intrastate act and presumPhiladelphia and Reading Tracks and trans- ably was at the time he was killed on his ferred two passenger cars from a train on way back to the place of his employment to the Philadelphia and Reading tracks, which engage in other duties the nature of which had originated at Philadelphia, one to a is not disclosed by the evidence. The local train, originating at Bethlehem, the burden of proof is upon the appellant to other to a through train, also on the Lehigh establish the fact that the decedent was enVailey tracks which had come through from gaged in interstate commerce at the time of Jersey City, New Jersey. After this through the injury. In Hench v. Penn. R. R. Co., train (No. 29) had proceeded the switching 546 Pa. St. 9, Mr. Justice Elkin held: "If engine was backed into the yard for some the mere fact that a railroad may be used at repairs to be made upon the engine. Sub- times, frequently or otherwise, for interstate sequent to these operations an east bound commerce transportation, fixes the status of train on the tracks of the Lehigh Valley all its employes as being engaged in interwent through and shortly afterward Mc- state commerce within the meaning of the Laughlin was found dead near the track on acts of congress, without reference to the which this train passed, presumably having duties they were performing at the time of been killed by the east bound train. Mc- the injury, it would follow that all such Lau hlin was last seen alive about fifteen or employees no matter how incidentally or retwenty minutes before the accident. At motely their duties had to do with interstate that time he was uncoupling the switching commerce generally, or what kind of comengine from the passenger car which he had merce they were engaged in when injured, just attached to the through train from would come within the purview of the FedJersey City. The passenger car which he eral statutes when they brought an action to attached to the through train was an intra-! recover damages for personal injuries. To

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so hold would mean the wiping out of all of intrastate business the acı does not apply."
state regulation and authority in matters re- In the case at bar the appellant has failed,
lating to the personal injuries of railroad in the burden cast upon it, to establish that
employees. The cases have not gone so far, McLaughlin at the time he was injured
and we do not see how the rule can be laid was an interstate employe.
down so broadly without doing violence to Appeal dismissed.
the plain language of the commerce clause
of the constitution which limits the Federal

C. P. of power to interstate subjects. Our view is

Northampton Co. that in cases like the one at bar, commerce

Controller's Report must be regaeded as of two kinds, intra and interstate, and the status of the employees County controller - Annual report of. must be determined by the kind of com

The annual report of the county controller merce they are engaged in at the time the made to the court of common pleas of the county, injuries were sustained. If they were en- is to be made by the acting controller, and no: by gaged in interstate commerce the Acts of an ex-controller. Congress apply; if they were engaged in

Report of Geurge F. P. Young, Esq., intrastate commerce the Federal statutes ex-controller, and report of Dr. Robley D. have no application.” In Behrens v. Rail- Walner, acting controller, with application road Company, 233 U. S. 473, the principle by each to permit the same to be filed. is laid down that it is the particular work in which the employe is engaged at the time James W. Fox, for Dr. Robley D. Walter. of the injury which counts, and if the em- George F. P. Young, per se. ploye, at the time of the injury, is engaged in a duty connected with intrastate com- January 28, 1918. STEWART, P. ).merce, the mere fact that immediatly upon Two reports have been presented to us. the completion of that work he expects to One was prepared by George F. P. Young, engage in a work connected with interstate Esq., the ex-controller, and one by Dr. commerce does not bring him within the Robley D. Walter, the acting controller. Federal Act. To hold that decedent was The question now before the court is which engaged in interstate commerce at the time is the report contemplated by the Act of he was injured the court would be obliged 27th June, 1895, P. L. 403 and its suppleto find, without any evidence to warrant ments. Mr. Young was the first controller such finding, that the coupling of an intra- in this county. Prior to his incumbency state car routed to an intrastate point, to an part of the work was done by the county interstate train constituted an act connected auditors. The most important duty of the with interstate commerce. It does not latter was to audit the accounts of the follow that the mere coupling of an intra-county officers, and to make report of the state passenger car to an interstate train same to the court. When the auditors' constitutes an act connected with interstate report was unappealed from, it became concommerce in the absence of any evidence to clusive. In the same way the report of the the effect that the intrastate car was actually controller is an important document, as it used for the transportation of interstate takes the place of the county auditors' commerce. The status of the car in this report, and fixes or discharges the liability instance is not determined by the character of county officials and their sureties. The of the train. In Van Brimmer v. Railroad sixth of section of the Act of 6th of May, Company, 190 Fed. Rep. 394, Judge Russel 1909, P. L. 434, provides that the county held: “Where a railroad brakeman was in- controller shall, in the month of January jured while engaged in making a flying every year make a report, verified by oath switch to set out a car transported wholly or affirmation, to the court of common pleas in intrastate traffic, though it was a part of of said county, etc. The first question is, the train carrying both interstate and intra- what party is meant? The act refers to the state freight, his injury did not occur while controller, and not to the ex-controller. It he was engaged in interstate commerce, and must mean the acting officer. If it had therefore was not within the Federal Em- been intended to refer to any other party, ploye's Liability Act under the rule that, if the legislature would have said so. To hold the emplove when injured is engaged wholly that it meant the ex-controller would be in the performance of service in furtherance changing the act. The report is then to be

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Vol. XXXI

THURSDAY, FEBRUARY 28, 1918.

In this house there are two rooms, one of Work Legal Record

them used as an office and the other as a

bedroom furnished by the defendant. The No 42. office room is used by the defendant for his

busidess of a real estate broker and operator: published in such newspapers published in Another person occupies the office room, the county, as the controller may direct, at who transacts business for himself, and also a cost which shall not exceed one thousand receives the defendant's mail and forward: dollars ($1000.00) in any one year. The it to him in Florida or wherever he may be publication meant' by that section is the ; The bedroom is used as a place to keep report of the controller for the time being, clothing and also a place where he can sleep and not that of a preceding controller. It, while in Philadelphia. As between him therefore, follows that the report of George and his sister, these two rooms are rated at F. P. Young, Esq., is not entitled to be five dollars per month. When he is not in either filed or printed at the expense of the Philadelphia, she has the privilege of rentcounty. The report of the present con- ing the bedroom. If she is short in her troller is the legal report, and it is, now, expenditures he gratuitously helps her out. filed, and should be published by him.

These were the conditions which existed

before his marriage, and at that time they C. P. of

Delaware Co. would fairly support a declaration of an Wolford v. Warrington

intention by him, that he was making the

Locust street house his place of residence. Foreign Attachment Residence When

The burden now shifts to the plaintiff to Writ Quashed.

show that a change of residence took place Where a man having a residence in Pennsy! by reason of the marriage. He was married vania, marries a Florida, and lives in the hotel during the winter on September 16, 1916, in New York, and but continues to maintain, and intends to return after a honeymoun spent in hotels in the to his Pennsylvania home in the spring, his resi: North, he and his wife went to live at her dence continues in Pennsylvania, and a writ of hotel in Florida. They expected to spend Foreign Attachment against him will be quashed.

the winter months in Florida, and the sumRule to quash writ.

mer months in the North.

When they William Taylor for rule.

came North in the spring of 1917, he and J. H. Hinkson and J. D. Ledward, his wife lived in the Locust street house but contra,

about a week, during the summer of 1917. December 3, 1917. BROOMALL, P. J.- With this exception, she lived at Stone This writ was issued on November 15, Harbor, a summer resort, and he spent the 1916. On May 1, 1917, the defendant : week-ends with her, and when he was not procured this rule to quash the writ. The traveling, lived in the Locust street house. burden is on the plaintiff to show that the Was his home in Florida or in Philadelphia? defendant was not a resident of Pennsyl. For Northern men and women, Florida is a vania, and was not in Delaware County on place of winter resort. The defendant has November 15, 1916.

not voted for a number of years. It does In support of this burden the plaintiff not appear where he paid his personal tax, shows that at that time the defendant was The question is this, does a man who has a in Florida, living as a boarder with his wife residence in Philadelphia lose it by going in a hotel belonging to her. Where a man with bis wife to Florida to live in her hotel, lives is presumptively his residence. In for the purpose of spending the winter order to parry this presumption and carry months there, expecting to return to Philathe burden which now shifts to the defend- delphia, to his place of res'dence in the ant, he attempts to show a residence at No. spring, and who does so return? We think 3643 Locust street, Philadelphia. It ap- he does not. A good service of summons pears that this property is occupied by his process might have been had on the defendsister, as the tenant of the whole of it, at a ant on November 16, 1917, by leaving it at monthly rent of thirty-five dollars, who No. 3648 Locust street, Philadelphia, with maintains it as her home. She sublets a an adult member of the family, with whom part of it for a monthly rent of twenty he resided. dollars. He renders pecuniary aid to her, It therefore follows, that we quash this to assist her in the maintenance of her home. I writ.

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