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July 23, 1917.

KOCH, J.-On the 13th order of court made under an agreement of September, 1902, a summons in trespass between counsel for the respective parties to was issued by R. M. McCormack, a justice the suit was also filed, substituting Mary of the peace in the Township of North Ann, the wife of Samuel Bautscher, George Union, commanding the defendant to ap- W. Van Blargen, William Van Blargen, pear before said justice on the 20th of Rebecca, the wife of Daniel Ulshaefer, September, 1902, between the hours of two Elizabeth, the wife of Henry Reinbold and and three o'clock in the afternoon. Service James Van Blargen "as plaintiffs in this of the summons was made upon both de- cause with like effect as if this action had fendants. At the time fixed for the hearing, originally been commenced by them in their Robert Meyers, agent, produced affidavits own proper name," said order having been taken and subscribed to before Morgan made on the 22nd day of October, 1906. Griffiths, a justice of the peace, on the 17th. A plea of "not guilty" seems to have been day of September, 1902, s'ating, "that the filed by the defendants on November 2nd, title of the land will come in question." 1906. Nothing more appears to have been Robert Meyers, agent, tendered half the done in the case until the 15th. of June, costs but refused to enter a recognizance as 1915, when Messrs. J. W. Moyer and required by the Act of July 2nd., 1901, P. Enterline and Enterline, counsel for WilL. 608. The justice proceeded with the liam H. Van Blargen, as plaintiff, formally hearing and the evidence showed that de-entered an appearance for said William H. fendant had cut timber to the value of Van Blargen. On the 4th. of June, 1917, Seventy-five dollars on land claimed by the on motion of J. W. Moyer and G. H. plaintiffs. The case was adjourned at the Gerber, atterneys for plaintiffs, a rule was request of Robert Meyers, agent, to Wed-granted on the defendants to show cause nesday, ctober 1st., 1902, at three P. M. why the plaintiff's statement should not be On the latter date, the parties appeared and amended as prayed for. The prayer is for Robert Meyers, agent, asked that the case "an order directing and permitting the be certified into court in accordance with the statement to be amended by striking out the terms of the act referred to. One Frank amount of $300 in the plaintiffs' statement Wharmby became bail absolute to the as filed and inserting in place thereof the plaintiffs "in the sum of one hundred and amount of $2500, so that the plaintiff's twenty-five dollars for the payment of the amended statement will conclude as follows, ** claim for damages and all costs ac- to wit;- damages to the sum of $2500, for crued or that may legally be recovered the recovery of which from the said defendagainst defendant." A transcript of the ants this suit is now brought by these plainrecord was certified on the same day and tiffs." The rule was made returnable on was filed to the above number and term, on the 18th of June, 1917, and the formal the 27th of October, 1902 by Mr. Durkin, answer of Dr. Meyers was filed on the attorney for the plaintiffs. On the 7th. of 18th day of June, 1917. The plaintiffs November, 1906, A. W. Schlack, Esq., now base their right of amendment upon the aldeceased, filed a statement of the plaintiffs' legation "that after the institution of this claim, in which it is averred "that one suit defendant continued trespasses upon the James Van Blargen in his life time was land of the plaintiffs by cutting and removseized in fee of and in a certain tract of ing trees on the said land of the plaintiff, by land, containing 15 acres or thereabouts, which acts of the defendant the injury or situate in North Union Township, in Schuyl-amount of damages done to the land of the kill County, Pa., and known as the saw plaintiffs was greatly increased so that the mill tract" etc; "and that James Van amount of damage claimed in the plaintiffs' Blargen died in the year 1900 or there- statement does not cover the whole damage abouts, intestate, and that the land descended done to the plaintiffs by the defendants." to his children and heirs." It is further averred in the statement, that on the 1st On the 9th of June, 1917, Messrs. day of January, 1902, the defendant "cut Gerber and Moyer, attorneys for plaintiffs' down upon the said tract of land a large filed notice, with acceptance of service by number of timber and other trees there defendants, "that the plaintiffs in the above standing," etc. Said statement lays the case will claim damages to the date of trial, damages at three hundred dollars. At the this under the Act of May 2nd., A. D., same time that the statement was filed, an 1876, P. L. p. 95.”

May the statement of claim be amended is concerned. He has no jurisdiction of an in the manner contended for by the plain- amount exceeding $300.00, and the amonnt tiffs in this case? The Act approved March cannot be enlarged by carrying the case into 22nd, 1814, 6 Sm. 182, conferred jurisdic- a Court of Common Pleas; Weidenhammer tion on justices of the peace in "actions of v. Bertle, 103 Pa. 448. When the amount trespass brought for the recovery of dam- involved in an action exceeds the justice's ages for injury done or committed on real jurisdiction, his proceedings therein are void; and personal estate, in all cases where the Geyger v. Stoy, 1 Dal. 135. In Collins v. value of the property claimed or the dam- Collins, 37 Pa. 387, where the verdict of ages alleged to have been sustained, shall the jury was for $146.00 in favor of the not exceed One hundred dollars. An Act plaintiff and it was evident that the amount No. 211, passed in 1879, P. L. 194, en- in controversy was in reality over $100.00, larges the jurisdiction to cases "wherein the although the justice of the peace had given sum demanded does not exceed Three hun- judgment for only $36.26, the verdict was dred dollars." The Act of 1814 was a- set aside upon the ground that the justice of mended by an act approved the 2nd of the peace, from whose judgment an appeal July, 1901, P. L. 608. had been taken, had no jurisdiction because From the above quotation from the plain- the amount was over $100.00. Here we tiff's petition for the amendment of the are asked to treat the case as though s,atement in this case, it is apparent that $2500 00 was the amount in controversy. the increased damages demanded are for If the amount sued for was not more than new and additional acts of trespass com- $300.00, a verdict for a larger amount, owmitted after the institution of this suit, acts so numerous and disastrous as to increase the damages from $75.00 to $2500.00. Now, as the justice of the peace had no jurisdiction of an amount so large, we cannot assume jurisdiction of a larger amount in this case than the justice of the peace could have assumed, before it was made to appear that the title to the land is in question. The Act of May 2nd, 1876, P. L. 95, does not refer to cases before justices of the peace. It is not practicable in such courts, because, by its provisions, notice must be given "not less than fifteen days before trial," whereas trials before justices of the peace are generally held on the date fixed in the summons for the defendant's appearances which can never be more than eight day, after the date of the summons, service of which must be made at least four days before the time of hearing.

ing to the accruing of interest pending liti-
gation, would be sustained; Collins v. Collins
supra. and Trego v. Lewis, 58 Pa., 463.
But we are not asked to permit the amend-
ment to be made so as to lay the damages at
$2500.00 because of accruing interest. We
are asked to allow the amendment, because
since the bringing of this suit, nearly fifteen.
years ago, the "defendant continued tres-
passes upon the land of the plaintiff by cut-
ting and removing trees on said land
"Cutting and removing trees," after the
commencement of this action, did not consti-
tute "continued trespasses" for which dam-
ages may be recovered under the Act of
1876, supra.
1876, supra. The damages meant by that
Act are those of a continuing nature and
for which a "second action might be
brought
* * after service of writ,
but the right to which would be determined
by the verdict in the first suit;" Hileman v.
Hileman, 172 Pa. 323. "Wrongs which,
from their very nature, are perpetrated at
only distinct and rare intervals, are not
within the meaning of the Act." Ibid,
"even though they be trespasses of the same
kind;" Panta 1 v. Coal and Iron Company,
204 Pa. 158; Tuston v. Sammons, 23 Su-
perior Court 175.

The Act of 2nd July, 1901, P. L. 608, which provides that, in cases where the title to the land comes in question, the "justice, alderman or other magistrate, instead of dismissing said suit, shall transmit a copy of the record thereof and of all proceedings therein to the Prothonotary of the Court of Common Pleas of this County, who shall enter the same in his docket; and the said This action was begun to recover damsuit shall then be proceeded in the said ages resulting from the cutting of certain court as if originally rightfully brought trees, prior to the commencement of the actherein," does not increase the amount of tion, and the value of those trees fixes the the justice's jurisdiction. We are dealing basis for ascertaining the amount of damages here with the question of the justice's juris- in this case. The language of Chief Justice diction, so far as the amount in contraversy Dean in Hileman v. Hileman, supra., seems

Work Legal Record

claimant and the defendant company and submitted to the Compensation Board to determine whether or not the manner of death Vol. XXXI THURSDAY, SEPTEMBER 20, 1917. No. 19 of the said Watson entitled the claimant to to apply here. "Suppose, instead of estab-compensation under the provisions of the Act of June 2nd, 1915, P. L. 736. The lishing a distillery permanent in its charac- Board has condensed and found from this ter, defendant had dumped into this stream the contents of an outhouse vault, the right agreement the following facts, viz.: "David Watson, the deceased husband of of the plaintiff would have been violated; the claimant, was employed by the defendthey might have repeated the wrong, but it would not have been the case intended by At the time of the accident he was engaged ant company as a driver in one of its mines. this act; such a trespass, if held to be within in filling his lamp, which was an ordinary the act, would possibly result in an absurd open driver's lamp attached to his cap, and condition; plaintiff having failed to prove was lighted and burning. That the deany wrong, before suit brought might, ceased was filling his lamp with crude oil or nevertheless, clearly prove one after; we petroleum, an explosive oil, which he himthen would have to sustain an action brought self had procured from a source outside the without cause and a verdict for a wrong mine and had taken into and secreted in the committed thereafter."

The rule is discharged.

C. P. of

Allegheny Co.
Watson v. Pittsburg Coal Company.

Workmen's Compensation--Misdemeanor-
Violation of Act of June 9, 1911, P. L.
756-Dependent Widow-Liability of
Employer.

Where, on appeal from an award of the Workmen's Compensation Board allowing compensation to the widow of an employe killed in a coal mine, liability is sought to be avoided on the ground that death was self-inflicted and intentional, the burden is on the employer, and when that burden is not met, death will be presumed to have been accidental, and the appeal should be

dismissed.

The fact that an employe in a coal mine was killed by the explosion of a lamp which he was filling with explosive oil brought into the mine contrary to the Act of June 9, 1911, P. L. 756,

which makes such an act criminal and a misdemeanor, will not relieve the employer from being compelled to compensate decedent's dependent widow, as the Workmen's Compensation Act of June 2, 1915, P. L. 736, makes no distinction in the degrees of negligence, and, being remedial legistion, should be broadly and liberally construed.

In re-appeal from the award of the Workmen's Compensation Board.

mine. That whilst thus engaged in filling his lamp, an explosion occurred in which he was so badly burned that he died the next day as a direct result of the injuries sustained, leaving to survive him only one dependent, his widow, the claimant."

From these facts the Board determined ae a finding of fact that David Watson's death was the direct result of an injury occurring in the course of his employment, and as a conclusion of law that his death was accidental, and that the claimant is entitled to compensation under the provisions of said compensation act.

The defendant appeals from the decision of the Board, alleging that the Board erred in so holding,on the ground that the deceased had violated the provisions of Sections 2 and 3 of Article XVII of the Bituminous Mining Act of June 9, 1911, P. L. 756, which provides as follows:

"Section 2. No explosive oil shall be taken into or used in any mine for lighting purposes, except when used in safety lamps

*

"Section 3. All oils and materials used in open lamps shall be non-explosive

***

Also citing Section 2 of Article XXVI of the same Act, page 831, which provides:

"Any person who neglects or refuses to perform the duties required of him by this Act, or who violates any of the provisions or requirements thereof, shall be deemed guilty of a misdemeanor, and shall upon conviction thereof be punished by a fine

* *

Acheson & Crumrine, for claimant. Johnston & Rose, for defendant. April 26, 1917. DAVIS, J.-This is an appeal from the decision of the Workmen's Compensation Board awarding compensation to Mary Watson, widow of David not exceeding two hundred dollars, or imWatson, who met his death while in the prisonment in the county jail for a period employment of the defendant company. not exceeding three months, or both, at the The facts were agreed upon between the discretion of the court.”

The question of the legal liability of the The Legislature has created a liability defendant under the undisputed facts has for personal injury or death by accident in been passed upon by the Board from a num- the course of employment without regard to ber of stand-points, and we see no reason to negligence. It has used the word negligence disagree with any of the conclusions reached in its broadest sense. It has not undertaken by the Compensation Board. to draw any distinction between the degrees The grounds urged by the defendant upon of negligence, whether ordinary, gross or which legal liability should be denied are criminal. There is no reason why the that the injury was caused by the defend- Court should read into the Act that which ant's violation of an Act of Assembly, and the Legislature has not done. The Legislathat his death should be held to be self-ture has further expressly designated its ininflicted and not accidental. There is no tention when it says that to bar compensapresumption that the deceased intended to tion the injury shall be self-inflicted and cause the explosion which resulted in his shall be done intentionally and that "the death. The accident might have been burden of proof of such fact shall be on the caused by his thoughlessness, lack of knowl- employer." The burden of proof has not edge or stupidity rather than any actual been met by the defendant in this case, and realization of the probable consequences of its appeal should be dismissed and the award his act. Without any evidence, we are of of the Compensation Board affirmed. the opinion that the latter is the more reasonable inference and that the death of the deceased should be classed as an accidental

one.

Cumberland Co.

C. P. of
Daron v. Prudential Insurance Co. of
America et al.

Another ground is urged as a reason why compensation should not be awarded, that Attorney-at-Law-Filing Warrant of At

the deceased had committed a criminal act and compensation should not be allowed on the ground of public policy. There might

torney-Service of Process on persons in Military or Naval Service-Attachment Execution.

be a great deal of force in this position if the An appearance by an Attorney-at-Law is preperson who was injured was seeking to re-sumed to be authorized, and the burden is on the cover for himself and had knowingly violated party attacking his authority to apply for a rule an Act of Assembly. The Compensation file his warrant under Section 71, of the Act of to show cause why he should not be required to Act is a highly remedial statute rendered April 14, 1834, P. L. 333. necessary for the protection of the laboring classes by reason of the great number of accidents in the use of rapid moving and dangerous machinery of all kinds in manufacturing or other industries where labor is employed. The Act should be broadly and liberally construed, for it not only provides for the workman who is injured, but for those who, in case of his death, were dependent upon him.

Section 301 of the Act provides:

"When employer and employe shall by agreement, either express or implied, as hereinafter provided, accept the provisions of Article III of this Act, compensation for personal injury to, or for the death of, such employe, by an accident, in the course of his employment, shall be made in all cases by the employer, without regard to negligence, according to the schedule contained in Sections 306 and 307 of this Article; provided that no compensation shall be made when the injury or death be intentionally selfinflicted, but the burden of proof of such fact shall be upon the employer.".

An attachment exection is civil procees within Section 60, of the Act of April 9, 1915, P. L. 80, which provides that "no civil process shall issue or be enforced against any person mustered into the service of this Commonwealth or of the United States during so much of the term as he shall be engaged in active service under orders, nor until thirty days after he shall have been relieved therefrom," and cannot issue while the dethe writ be made on the garnishee only for the fendant is in active service, although service of purposes of acquiring a lien and no effort be made to serve the defendant personally.

Rule to dissolve attachment.

J. Harvey Line and H. Berg, for rule.
W. A. Kramer, contra.

April 3, 1917. SADLER, P. J.-On March 1, 1913, W. A. Adams executed a judgment note in favor of the plaintiff. The same was entered for the balance remaining due thereon, to wit, $304, on Aug. 9, 1916. Subsequently an attachment execution was issued in which the defendant was named, and the Prudential Insurance Company of America was summoned as garnishee. Νο attempt was made to serve the former, as

appears by the return of the sheriff, but a proper return was made as to the latter. Subsequently interrogatories were filed with leave of court, and answers filed, which remain undisposed of.

In the present case, not only was there a presumption of the right to appear, but ample evidence to justify this conclusion and a ratification of the acts done. The same can be said of the associate counsel who appeared. Though the client cannot be held liable for services performed by a second attorney employed by the first without consent; (Hewes v. Transportation Co., 31 Pa. C. C. Reps. 73,) yet the employment, as in this case, may be ratified by the client.

On July 9, 1916, Adams was mustered into the service of the Government, and remained in the same until Feb. 28, 1917. An appearance was entered for him on Jan. 18, 1917, and the next day a petition was presented, praying for a rule to show cause why the attachment should not be dissolved The real contention before us is found and the proceedings stricken from the record in the objection to the issuance of the atby reason of their institution while the de-tachment execution while Adams was emfendant was engaged in military service. An ployed in the service. The National Guard answer was filed denying the right to such action. Depositions were taken on both sides, and the questions involved submitted after argument.

Act of April 9, 1915, § 60, P. L. 80, directed that no civil process should issue against any person mustered into service while so engaged, or for thirty days thereafter. This provision is taken from the Act of April 18, 1861, § 4, P. L. 408, and is carried, in turn, into the Act of April 13, 1887, § 127, P. L. 23, the Act of April 28, 1899, $ 59, P. L. 133, and the Act of May 5, 1911, § 60, P. L. 131.

313. Is the same true where the writ is one of attachment exection? An attachment execution is an execution process; Stranahan v. Stranahan. 146 Pa. 44; Kennedy v. Agricultural Insurance Co., 165 Pa. 179. It must be directed to the defendant, who must be called in, as well as to the garnishee; Act of June 16, 1836, § 36, P. L. 755. And must be served upon him, except where he is a non-resident, before judgment is taken against the garnishee, so that he may interpose any proper defense; Corbyn v. Bollman, 4 W & S. 342; Carter v. Wallace, W. N. C. 63; Cunningham v. O'Keefe, 3 Pa. C. C. Reps. 471.

The first question raised is based on the alleged lack of authority on the part of counsel for the defendant to institute the present proceeding. The petition for the rule was presented by a member of the bar, who had entered his appearance in the case in the office of the Prothonotary. "An Attorney- The exemption provided has been applied at-Law is an officer of the court in which in the case of a scire facias sur mortgage he is admitted to practice. His admission (Coxe v. Martin, 44 Pa. 322; Drexel v. and license raise a presumption prima facie | Miller, 49 Pa. 246; Land Title & Trust in favor of his right to appear for any per- Co. v. Rambo, 174 Pa. 566,) and to a writ son whom he undertakes to represent. When of levari facias; Breitenbach v. Bush, 44 Pa. his authority to do so is questioned or denied, the burden of overcoming this presumption in his favor rests on him who questions or denies his auihority;" Danville, H. & W. R. R. Co. v. Rhodes, 180 Pa. 157. If it is desired that a warrant of attorney be filed, it can be compelled as provided by the Act of April 14, 1834, §71, P. L. 333. But this requirement is to be enforced by a preliminary rule to be allowed by the court; Com. v. Serfass, 5 Pa. C. C. Reps. 139. It is based on a sworn affidavit which shows the existence of facts which tend to overcome the presumption that the attorney is authorized; Danville, H. & W. R. R. Co. v. Rhodes, 180 Pa. 157. To such petition It is suggested that though the defendant an answer can be filed and an issue raised; is a necessary party to the writ of attachMcAlpine Street, 40 Pa. Superior Court ment execution, yet one of the purposes is to 268. If the proper practice had been com- secure a lien upon his goods in the hands of plied with, it becomes the duty of the attorney to file the warrant required by the act, and mere consent shown by letters or otherwise will not be accepted in lieu thereof; Fisher v. Reach, 202 Pa. 74. (In this case it appeared that the warrant of attorney could not be filed, as the interest involved had been parted with.)

the garnishee, and that this may be done by service on the latter, though no judgment could be obtained until the defendant is properly brought in-here more than thirty days after military service is ended. It will not be questioned that the mere entry of the judgment is not such process as is prohibited by the Act of 1915. But is the same true

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