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recited findings of the referee. The finding and practically maintaining herself; and that of the referee is necessarily a finding of fact she had remained away from Duquesne until under Section 307 of the Compensation Act after her husband's death, a period of nearly of 1915, P. L. 736, which provides that "no two years. compensation shall be payable under this These facts would require a satisfactory section to a widow unless she was living explanation on her part of the nature of the with her deceased husband at the time of marital relation existing between herself and his death or was then actually dependent her husband. The referee in his discussion upon him for support.” Section 409 of the of the evidence in the case has plainly stated Act provides:

that he could not give faith and credit to "A referee's findings of facts shall be the testimony of the claimant. There was final, unless the Board shall allow an appeal no evidence that connected the newspaper therefrom as hereinafter provided. The clipping (advertising for the wife) with Board's findings of fact shall in all cases be any personal act of either the deceased or final.

the claimant, and it should have had no "From the referee's decision on any ques- evidential value in the determination of the tion of law an appeal may be taken to the question at issue. It does not appear that Board, and from any decision of the Board this newspaper clipping, Exhibit No. 1, conon a question of law an appeal may be taken trolled the finding of the referec or the to the couris as hereinafter provided.”

Compensation Board. The court, therefore, has jurisdiction to

We are of the opinion that there was review on appeal from the Board only ques. legal evidence with inferences from the tions of law arising out of the record or out facts and circumstances in evidence that of the evidence on which the conclusions of would be sufficient to leave the determinalaw or fact are found by the referee and tion of the fact of dependency in the posses affirmed by the Compensation Board. Where there is competent legal evidence Board and that would require us to hold

sion of the referee and the Compensation to sustain findings of fact, the decision of that their decision is final and conclusve. the referee, affirmed by the Board, is final and conclusive. The contention of the appellant in the case at bar is that under the evidence the Board should have found af- Abstracts of Recent Decisions. firmatively instead of negatively that she was actually dependent on her husband at the time of his death.

(Cases not otherwise designated are Supreme The court in reviewing an appeal from a

Court Cases.) finding of fact cannot consider the weight of the evidence and is not in a position to Water Company-Action for Rents Due pass on the credibility of the witnesses. Damages for Refusal to Supply Water:The court is in the same position in dispos- In a suit by a water company to recover aring of an appeal under the Compensation rearages of water rents for several properties, Act as it is in passing on the question the defendant is entitled to set-off damages whether there is any evidence that requires which he has suffered by a breach of conthe submission of an issue of fact to the de-tract to furnish him water. Where a water termination of a jury.

company enters into a separate but identical The question of law here is, was there contract for each of a number of properties any legal and competent evidence on which owned by one person, the contracts containthe said finding of fact can rest or be sus ing a provision that the water might be shut tained. The evidence is very limited and off in case of non-payment and before turnmeager and depends to a considerable extent ing it on again the company should have the on the faith and credit to be given to the right to demand and require payment of all testimony of the claimant. She had been water rents and other charges therein agreed living away from her husband in her native to, the company has no right to either shut country; she lived with him only a short the water off or to refuse to turn it on at time in the Borough of Duquesne, Pa.; she one house, because of arrears due for another admitted that she had trouble with her hus- one.--Springfield Consolidated Water Co. band; that she had left him and went to ?'. Griffith, (Delaware C.P.) 14 Delaware Passaic, N. J.; that she was working for County Reports 383.


No. 25

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· Work Legal TRecord awarding it to the party who presented it,

he directed that $281.08 should be paid to

the Farmers' National Bank of Lititz, in THURSDAY, NOVEMBER 1, 1917.

order to pay the above mentioned note, upon

which Jacob B. Hertzler was maker and COMMON PLEAS

Clayton B. Hertzler endorser, and he

awarded no separate dividend on the note C. P. of

Lancaster Co. itself. Exceptions were, therefore, filed to

this distribution, on the ground that Jacob Farmers' National Bank of Lititz v.

B. Hertzler was entitled to the whole of the Hertzler.

dividend, and the correctness of the auditor's

conclusion is the question now before the Promissory Note-Principal and Surety-court. Set Off

It is urged by the learned auditor, quoting On distribution of the proceeds of an attach- from Craighead v. Swartz, 219 Pa. 149, ment the amount of a protested note held by a that it is a settled rule of law that “when a bank on which the defendant in the attachment is principal has become insolvent, the surety endorser can not be set off against and deducted from the dividend allowable on a claim of the may retain the moneys of the principal or maker, who is insolvent, against the defendant, the amount of his indebtedness to the prinand awarded to the bank in full payment of the cipal as a fund for his indemnity," and that, note. A regular dividend should be allowed on "as between principal and surety, Courts of the note and credited on the full claim of the Equity always lend their aid for the protecmaker against the defendant.

tion of the latter" (Beaver v. Beaver, 23 Exceptions to report of Auditor.

Pa. 167). He seemed to think that, in B. F. Davis for exceptions.

pursuance of this doctrine, the Farmers'

National Bank of Lititz was entitled to reCoyle & Keller, contra.

ceive payment of its note before Jacob B. March 24, 1917. LANDIS, P. J.-On Hertzler could be allowed anything upon July 21, 1915, a domestic attachment was his independent claim. We think that he issued, at the instance of the plaintiff, against erred in this conclusion and that these auClayton B. Hertzler, for the benefit of the thorities have been misunderstood. said plaintiff and all the other creditors of If Jacob B. Hertzler had brought suit the said defendant, and on August 21, 1915, against Clayton B. Hertzler to recover the Harvey B. Lutz, Samuel M. Ruth and sum of $607.06, it must be conceded that, Frank E. Schnerer were appointed trustees. upon Clayton B. Hertzler's paying to the Having converted the assets into money, bank the note of $260.00 upon which he these trustees filed an account, whereby a was surety, he could have set off the amount balance was shown to be in their hands for thus paid by him against the claim for distribution of $3,759.24. An auditor was which the suit was brought, and, in that thereupon appointed by this court to make event, Jacob B. Hertzler could only have distribution of this balance, and, at the audit, recovered judgment for the balance due him Jacob B. Hertzler presented a claiin against over and above the amount of the note and his son, Clayton B. Hertzler, for $607.06. interest. It also follows that, in a case of No objection was made by any one to this insolvency, like this, when the note is preclaim. At the same time, the Farmers' sented in the distribution of the assets, and National Bank of Lititz presented a note a dividend is awarded upon it out of the infor $260.00, dated June 2, 1915, signed by solvent surety's estate, the amount thus Jacob B. Hertzler as maker, and made pay- awarded for the benefit of the claimant able to the order of Clayton B. Hertzler. ought to be set off against any other claim

was endorsed by Clayton B. presented by the maker of the note against Hertzler and was duly protested for non- the surety's insolvent estate. By these payment. The only other fact elicited in means the rights of the principal and the regard to the note was that Jacob B. Hertz- surety are equitably regulated, and that is ler at that time was a man of little or no the only purpose of the rule. It is applied financial responsibility.

strictly between principal and surety, and In the distribution made by the auditor, does not apply in favor of third parties, so he awarded on the claim of Jacob B. Hertz- as to give them an advantage which otherler a dividend of $317.97; but, instead of wise would not accrue to them.

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It must be remembered that, in this case, to the testimony of the plaintiff's witness on the the Farmers' National Bank of Lititz had question of defendant's negligence, as negative, no connection whatever with the claim of "whistle was not blown, or that the bell did not

where none of her witnesses swore that the Jacob B. Hertzler against Clayton B. Hertz-Iring," and this testimony was met by the positive ler, and its note was in no wise connected testimony on the part of the defendant that the with that transaction. We know, there-whistle was blown and that the bell did ring. fore, of no authority which enables the

Summons in trespass. auditor to take the dividend upon that claim

F. A. Witmer, Kauffman and Little for and summarily apply it to the payment of

plaintiff. any note which a third party happens to

l'oris Auten and J. F. Whalen for dehave against the maker, and the surety.

fendant. What right has the bank to the whole dividend over and above other creditors, even if March 5th, 1917. Moser, J.-On the a power existed to withhold the dividend 12th day of June, 1915, Levi Diehl, the for the benefit of the surety's estate? The plaintiff's husband, was riding with his cases cited by the learned auditor arise out nephew, Thcodore Diehl, in an auto delivof equity between the parties to the identical ery truck along the public road extending in transaction, and they are cases where, by a southerly direction from the main highjudgment or mortgage, the definite rights of way leading from Danville to Bloomsburg, the parties are fixed. Again, this method and crossing the tracks of the Philadelphia of procedure might deprive the maker of the and Reading Railway Company at grade, note from making a defense to it against the near a small station known as Grovania. holder. Suppose, for the sake of the argu- Theodore Diehl was operating the car. ment, Jacob B. Hertzler had a full defense While attempting to pass over this grade to the note against the bank, if it should crossing the car was struck by a passenger have sued him for its recovery, how could train, running in an easterly direction from he secure a trial of his rights in the collateral | Danville toward Rupert, at a high rate of distribution of his son's insolvent estate? speed, and both men were killed. The

It seems to us that this distribution should plaintiff seeks to recover in this action for have been made among all the creditors, and the damage she sustained by the loss of her that any amount which the assigned estate husband. is ordered to pay as a dividend to the The trial was proceeded with to the Farmers' National Bank of Lititz on this ordinary conclusion. The question as to particular note ought to be credited on the whether or not the defendant was guilty of full claim which Jacob B. Hertzler holds a want of due care under the circumstances, against his son; Miller & Reist v. Kreiter, as well as the inquiry as to whether or not to the use of Bomberger, 76 Pa. 78. plaintiff's decedent was guilty of contribu

The exceptions are sustained and the re- tory negligence were duly submitted to the port is now re-committed with instructions jury. The jury rendered a verdict in favor to the auditor to distribute the balance in of the defendant. After the charge proper accordance with this opinion.

had been delivered to the jury the plaintiff's Exceptions sustained.

counsel withdrew the points or requests for charge which had been submitted by them.

The plaintiff has assigned many reasons C. P. of

Northumberland Co.

why her motion for a new trial should be Diehl v. Phila. & Reading Railway Co. granted. Not all of these reasons were Accident at Grade Crossing--Negative Tes- be here considered seriatum. Many of them,

Tes not timony-Motion for New Trial.

in reality, complain of the action of the jury. In an action against a railroad company for This action was unfortunate to the cause of damages for the death of plaintiff's husband in a the plaintiff, but we can see no good reason collision, between a train and an automobile at a why fault should be found with the verdict grade crossing, where the question of defendant's

The negligence in not giving sufficient warning and or the work of the jury criticised. the plaintiff's contributory negligence in failing defendant's failure to have given the proper to stop, look and listen" before getting on the warnings, under the circumstances, would tracks were submitted to the jury and a verdict have been its default under the conditions for the defendant returned, a new trial will not disclosed. That the engine man blew the be granted on the ground that the plaintiff was prejudiced by the charge of the couri in referring whistle of the engine at the whistle board,

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the accustomed place to give crossing warn- clear understanding of the rights of the
ings, and that the bell of the locomotive was parties and the questions at issue.
rung and sounded from the whistle board to! We are not convinced that there was
the crossing where the accident occurred error in the court's answer to the defend-
was shown and proved by a decided prepon- ant's request for charge. Some of the
derance of the testimony. There was also points might have been answered more fully
ample testimony to sustain a conclusion that but it is impracticable to comment upon
the automobile was not stopped as it ap- every phase of a proposition in connection
proached the crossing but proceeded at a with each point submitted. Such a require-
high rate of speed from the turn near the ment would lead to endless discussion and
school house, some considerable distance would tend to confuse or obscure rather
away, to the crossing and upon the track than to elucidate. From an examination of
directly in front of the train, thus violating the testimony and the record it will clearly
the duty to stop, look and listen.

appear that the court was fully justified in
We fail to see how the plaintiff's rights its answers to defendant's requests which
were prejudiced in the slightest degree by were grounded upon the evidence; nor do
the court saying to the jury that the testi- we think there is error of sufficient gravity
mony of the plaintiff's witnesses relating to in any part of the charge to warrant the
the blowing of the engine whistle at the granting of a new trial.
whistle board and the ringing of the bell as The plaintiff's motion for a new trial is
the train approached the crossing was nega- hereby overruled and an exception noted.
tive testimony. Not any of the said wit.
nesses swore that the whistle did not blow
or that the bell did not ring. Nor did they C. P. of

Montgomery Co. say that they were looking or listening for some such signal by whistle or bell, as was Borough of Norristown v. Puleo. the case in Kuntz v. Railway Company, 206 Pa. 162, and other decisions cited by the Borough OrdinancesLicensing Junk Dealplaintiff.

We have reviewed the reasons assigned The Borough of Norristown enacted an ordiby the plaintiff with considerable care and nance, reqniring each person, partnership, assofind nothing therein which in our judgment ciation or corporation, engaged in the buying and warrants the granting of a new trial. The selling of junk, rubber, rags, rope, scrap iron,

brass, lead, copper or other metal, commonly sufficiency of the warning given, under the known as junk dealers, to pay an annual license circumstances

, was for the jury. The sur- fee of Ten Dollars." The defendant was con rounding conditions that prevailed at the victed before a Justice of the Peace of engaging time and place of the accident, the conduct in the business of junk dealer in said Borough of the defendant's employees, as well as the justice imposed a penalty of ten dollars. Upon

without first obtaining a license permit. The conduct of the plaintiff's decedent and all certiorari, Heid, that the proceedings must be afothers who were immediately implicated in firmed. the unfortunate drama, were all clearly pre-l. The supervision over junk dealers falls within sented, explained and discussed before the the police power of the State because this power

embraces all manner of wholesome and reasonjury, thus enabling that body to pass intelli- able laws, statutes and ordinances, not repugnant gently upon the facts in the case and to to the Constitution, which the Legislature may consider clearly the issue involved. It was judge to be for the good and welfare of the Com

monwealth and of the objects of the same. for the jury to say from the testimony, what State has the inherent right to protect health, lite

The obstructions interfered with the view of the and limb, individual liberty of action, private plaintiff's decedent; what precautionary property and the legitimate use thereof and to measures should have been observed by him provide generally for the safety and welfare of

its people.
as he approached the track; what crossing
alarms should have been given by the de-

fendant under the prevailing conditions. Henry M. Brownback for plaintiff.
These matters were all made clear to the
jury and the rules of law applicable to the

Irvin P. Knipe for defendant.
case were sufficiently discussed by counsel September 18, 1917. Swartz, P. J.-
and explained by the court to enable the jury The Borough of Norristown enacted an or-
to pass intelligently upon every feature of dinance requiring "Each person, partnership,
the claim and to arrive at a verdict with a association or corporation engaged in the

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buying and selling of junk, rubber, rags, cupidity of the needy and criminal classes in rope, scrap iron, brass, lead, copper or other furnishing a market for unsaleable articles.” metal, commonly known as junk dealers, to

The supervision over junk dealers falls pay an annual license fee of ten dollars."

within the police power of the state, because The said ordinance also provided for the this power embraces all manner of wholecollection of a penalty before a justice of the some and reasonable laws, statutes and ordipeace, from any person who engaged in nances, not repugnant to the Constitution said business without first obtaining such which the Legislature may judge to be for license.

the good and welfare of the Commonwealth The defendant was convicted, before the and of the subjects of the same. The State said justice, of engaging in the business of a has the inherent right to protect health, life junk dealer in the Borough of Norristown, and limb, individual liberty of action, private without first obtaining a license permit. property and the legitimate use thereof, and The justice imposed a penalty of ten to provide generally for the safety and weldollars.

fare of its people. The regulation of junk The defendant sued out a writ of cer- dealers and junk shops falls within the legitiorari. In his application for the writ he timate exercise of the police power of the alleges that the said ordinance is illegal and State to secure the welfare, safety and provoid and that the justice had no jurisdic- tection of its people, 8 Cyc. 874; McQuillin tion' thereunder, to impose the said fine or on Municipal Ordinances, sections 428, 429 penalty.

and 430; Powell v. Pennsylvania, 127 U.

S. 678. This police power is exercised in Numerous exceptions were filed to the prescribing regulations for the good order

, proceedings, but all were withdrawn, save those which attacked the authority of the peace, health, protection, comfort, conveni

ence and morals of the community. borough council to enact the ordinance in

It is well known that keepers of junk question. That the defendant engaged in the busi- shops require supervision inasmuch as thieves

and receivers of stolen property often resort ness of a junk dealer, failed to take out a license and incurred the penalty imposed can of their ill-gotten gains; Marmet v. State,

to such places to pledge or otherwise dispose not be gainsaid, if the borough had the

12 North Eastern Rep. (Ohio) 471. Such power and authority to enact the said ordi

regulations and supervisions are especially

necessary in cities and populous communiA junk dealer is one who buys and sells ties. Norristown is a borough but has the old metal, rope and rags.

population of a city. The defendant conducts his junk business

The power to enact a statute or ordinance at No. 603 Sandy Street, in the Borough of under the exercise of the police power necesNorristown.

sarily embraces the power to impose a license That the Commonwealth has the right fee or penalty to enforce the regulation. under the exercise of her police powers to Without such power the purpose of the regulate the business of junk dealers is well ordinance would be defeated and its benefits established; Com. v. Mintz, 19 Pa. Superior would be lost to the community. Ct. 283.

The contention of the defendant that a In this case the constitutionality of the junk dealer follows a legitimate business Act of April 11, 1899, P. L. 37, relating to and is, therefore, not subject to any police keepers of junk shops was involved. The regulation or supervision, can not be suscourt said:


His judgment may be sound, but it “The regulation of this class of dealers is must yield to the legislative mind upon the within the police power of the state, and the question unless he can point to some provilegislative judginent, in prescribing rules sion of the Constitution that is violated. and imposing penalties, in conducting such To refuse recognition of this legislative a business, is to be made effectual by the power is to make the individual judgment courts, unless it is clearly in violation of the superior to that of the Legislature; Com. constitution."

“The business of v. Kevin, 202 Pa. 29; Penna. R. R. Co. v. keeping a junk shop or second-hand store Ewing, 241 Pa. 590. is a proper subject for legislative control. If the State may enact such a police reguSuch a business appeals to the necessity and lation, then the question arises, whether the



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