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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 section to a widow unless she was living with her deceased husband at the time of his death or was then actually dependent upon him for support." Section 409 of the Act provides:

"A referee's findings of facts shall be final, unless the Board shall allow an appeal therefrom as hereinafter provided. The Board's findings of fact shall in all cases be

final.

"From the referee's decision on any question of law an appeal may be taken to the Board, and from any decision of the Board on a question of law an appeal may be taken to the courts as hereinafter provided."

The court, therefore, has jurisdiction to review on appeal from the Board only questions of law arising out of the record or out of the evidence on which the conclusions of law or fact are found by the referee and affirmed by the Compensation Board.

Where there is competent legal evidence to sustain findings of fact, the decision of 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 affirmatively instead of negatively that she was actually dependent on her husband at the time of his death.

These facts would require a satisfactory explanation on her part of the nature of the marital relation existing between herself and her husband. The referee in his discussion of the evidence in the case has plainly stated that he could not give faith and credit to the testimony of the claimant. There was no evidence that connected the newspaper clipping (advertising for the wife) with any personal act of either the deceased or the claimant, and it should have had no evidential value in the determination of the question at issue. It does not appear that this newspaper clipping, Exhibit No. 1, controlled the finding of the referee or the Compensation Board.

legal evidence with inferences from the We are of the opinion that there was facts and circumstances in evidence that tion of the fact of dependency in the posseswould be sufficient to leave the determinaBoard and that would require us to hold sion of the referee and the Compensation that their decision is final and conclusve.

Abstracts of Recent Decisions.

(Cases not otherwise designated are Supreme Court Cases.)

The court in reviewing an appeal from a 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 1earages 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 v. Griffith, (Delaware C. P.) 14 Delaware Passaic, N. J.; that she was working for County Reports 383.

Work Legal Record awarding it to the party who presented it,

Vol. XXXI THURSDAY, NOVEMBER 1, 1917. No. 25

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he directed that $284.08 should be paid to the Farmers' National Bank of Lititz, in order to pay the above mentioned note, upon which Jacob B. Hertzler was maker and Clayton B. Hertzler endorser, and he awarded no separate dividend on the note itself. Exceptions were, therefore, filed to this distribution, on the ground that Jacob B. Hertzler was entitled to the whole of the dividend, and the correctness of the auditor's conclusion is the question now before the

Promissory Note-Principal and Surety-court.
Set Off.

On distribution of the proceeds of an attachment the amount of a protested note held by a bank on which the defendant in the attachment is endorser can not be set off against and deducted from the dividend allowable on a claim of the maker, who is insolvent, against the defendant, and awarded to the bank in full payment of the note. A regular dividend should be allowed on the note and credited on the full claim of the maker against the defendant.

Exceptions to report of Auditor.
B. F. Davis for exceptions.
Coyle & Keller, contra.

March 24, 1917. LANDIS, P. J.-On July 21, 1915, a domestic attachment was issued, at the instance of the plaintiff, against Clayton B. Hertzler, for the benefit of the said plaintiff and all the other creditors of the said defendant, and on August 21, 1915, Harvey B. Lutz, Samuel M. Ruth and Frank E. Schnerer were appointed trustees. Having converted the assets into money, these trustees filed an account, whereby a balance was shown to be in their hands for distribution of $3,759.24. An auditor was thereupon appointed by this court to make distribution of this balance, and, at the audit, Jacob B. Hertzler presented a claim against his son, Clayton B. Hertzler, for $607.06. No objection was made by any one to this claim. At the same time, the Farmers' National Bank of Lititz presented a note for $260.00, dated June 2, 1915, signed by Jacob B. Hertzler as maker, and made payable to the order of Clayton B. Hertzler. This note was endorsed by Clayton B. Hertzler and was duly protested for nonpayment. The only other fact elicited in regard to the note was that Jacob B. Hertzler at that time was a man of little or no financial responsibility.

It is urged by the learned auditor, quoting from Craighead v. Swartz, 219 Pa. 149, that it is a settled rule of law that "when a principal has become insolvent, the surety may retain the moneys of the principal or the amount of his indebtedness to the principal as a fund for his indemnity," and that, "as between principal and surety, Courts of Equity always lend their aid for the protection of the latter" (Beaver v. Beaver, 23 Pa. 167). He seemed to think that, in pursuance of this doctrine, the Farmers' National Bank of Lititz was entitled to receive payment of its note before Jacob B. Hertzler could be allowed anything upon his independent claim. We think that he erred in this conclusion and that these authorities have been misunderstood.

If Jacob B. Hertzler had brought suit against Clayton B. Hertzler to recover the sum of $607.06, it must be conceded that, upon Clayton B. Hertzler's paying to the bank the note of $260.00 upon which he was surety, he could have set off the amount thus paid by him against the claim for which the suit was brought, and, in that event, Jacob B. Hertzler could only have recovered judgment for the balance due him over and above the amount of the note and interest. It also follows that, in a case of insolvency, like this, when the note is presented in the distribution of the assets, and a dividend is awarded upon it out of the insolvent surety's estate, the amount thus awarded for the benefit of the claimant ought to be set off against any other claim presented by the maker of the note against the surety's insolvent estate. By these means the rights of the principal and the surety are equitably regulated, and that is the only purpose of the rule. It is applied 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.

to the testimony of the plaintiff's witness on the question of defendant's negligence, as negative, where none of her witnesses swore that the "whistle was not blown, or that the bell did not

testimony on the part of the defendant that the
whistle was blown and that the bell did ring.
Summons in trespass.

plaintiff.
F. A. Witmer, Kauffman and Little for

Voris Auten and J. F. Whalen for defendant.

It must be remembered that, in this case, the Farmers' National Bank of Lititz had no connection whatever with the claim of Jacob B. Hertzler against Clayton B. Hertz-ring," and this testimony was met by the positive ler, and its note was in no wise connected with that transaction. We know, therefore, of no authority which enables the auditor to take the dividend upon that claim and summarily apply it to the payment of any note which a third party happens to have against the maker, and the surety. 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, Theodore 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 Farmers' National Bank of Lititz on this particular note ought to be credited on the full claim which Jacob B. Hertzler holds against his son; Miller & Reist v. Kreiter, to the use of Bomberger, 76 Pa. 78.

The exceptions are sustained and the report is now re-committed with instructions to the auditor to distribute the balance in accordance with this opinion. Exceptions sustained.

C. P. of

Northumberland Co.

Diehl v. Phila. & Reading Railway Co. Accident at Grade Crossing-Negative Testimony-Motion for New Trial.

The trial was proceeded with to the ordinary conclusion. The question as to whether or not the defendant was guilty of a want of due care under the circumstances, as well as the inquiry as to whether or not plaintiff's decedent was guilty of contributory negligence were duly submitted to the jury. The jury rendered a verdict in favor of the defendant. After the charge proper had been delivered to the jury the plaintiff's counsel withdrew the points or requests for charge which had been submitted by them.

The plaintiff has assigned many reasons why her motion for a new trial should be granted. Not all of these reasons were be here considered seriatum. Many of them, pressed at the argument and they will not 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 negligence in not giving sufficient warning and or the work of the jury criticised. The 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 be granted on the ground that the plaintiff was disclosed. That the engine man blew the prejudiced by the charge of the court in referring whistle of the engine at the whistle board,

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 defendwas 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 requirehigh 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 duty to stop, look and listen.

the testimony and the record it will clearly appear that the court was fully justified in its answers to defendant's requests which were grounded upon the evidence; nor do we think there is error of sufficient gravity in any part of the charge to warrant the granting of a new trial.

We fail to see how the plaintiff's rights were prejudiced in the slightest degree by the court saying to the jury that the testimony of the plaintiff's witnesses relating to the blowing of the engine whistle at the 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 witnesses swore that the whistle did not blow

Montgomery Co.

Borough of Norristown v. Puleo.

or that the bell did not ring. Nor did they c. P. of
say that they were looking or listening for
some such signal by whistle or bell, as was
the case in Kuntz v. Railway Company, 206
Pa. 162, and other decisions cited by the
plaintiff.

We have reviewed the reasons assigned by the plaintiff with considerable care and find nothing therein which in our judgment warrants the granting of a new trial. The sufficiency of the warning given, under the circumstances, was for the jury. The surrounding conditions that prevailed at the time and place of the accident, the conduct of the defendant's employees, as well as the conduct of the plaintiff's decedent and all others who were immediately implicated in the unfortunate drama, were all clearly presented, explained and discussed before the jury, thus enabling that body to pass intelligently upon the facts in the case and to consider clearly the issue involved. It was for the jury to say from the testimony, what obstructions interfered with the view of the plaintiff's decedent; what precautionary measures should have been observed by him as he approached the track; what crossing alarms should have been given by the defendant under the prevailing conditions. These matters were all made clear to the jury and the rules of law applicable to the case were sufficiently discussed by counsel and explained by the court to enable the jury to pass intelligently upon every feature of the claim and to arrive at a verdict with a

Borough Ordinances-Licensing Junk Deal

ers.

The Borough of Norristown enacted an ordinance, reqniring "each person, partnership, association or corporation, engaged in the buying and selling of junk, rubber, rags, rope, scrap iron, known as junk dealers, to pay an annual license brass, lead, copper or other metal, commonly fee of Ten Dollars." The defendant was convicted before a Justice of the Peace of engaging in the business of junk dealer in said Borough justice imposed a penalty of ten dollars. Upon without first obtaining a license permit. certiorari, HELD, that the proceedings must be affirmed.

The

the police power of the State because this power embraces all manner of wholesome and reasonable laws, statutes and ordinances, not repugnant to the Constitution, which the Legislature may judge to be for the good and welfare of the ComState has the inherent right to protect health, life monwealth and of the objects of the same. The and limb, individual liberty of action, private property and the legitimate use thereof and to provide generally for the safety and welfare of its people.

The supervision over junk dealers falls within

Certiorari.

Henry M. Brownback for plaintiff.
Irvin P. Knipe for defendant.

September 18, 1917. SWARTZ, P. J.— The Borough of Norristown enacted an ordinance requiring "Each person, partnership, association or corporation engaged in the

buying and selling of junk, rubber, rags, rope, scrap iron, brass, lead, copper or other metal, commonly known as junk dealers, to pay an annual license fee of ten dollars."

The said ordinance also provided for the collection of a penalty before a justice of the peace, from any person who engaged in said business without first obtaining such license.

The defendant was convicted, before the said justice, of engaging in the business of a junk dealer in the Borough of Norristown, without first obtaining a license permit. The justice imposed a penalty of ten dollars.

cupidity of the needy and criminal classes in furnishing a market for unsaleable articles."

The supervision over junk dealers falls within the police power of the state, because this power embraces all manner of wholesome and reasonable laws, statutes and ordinances, not repugnant to the Constitution which the Legislature may judge to be for the good and welfare of the Commonwealth and of the subjects of the same. The State has the inherent right to protect health, life and limb, individual liberty of action, private property and the legitimate use thereof, and to provide generally for the safety and welfare 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 and 430; Powell v. Pennsylvania, 127 U. penalty. S. 678. This police power is exercised in prescribing regulations for the good order, peace, health, protection, comfort, conveni

Numerous exceptions were filed to the proceedings, but all were withdrawn, save those which attacked the authority of the borough council to enact the ordinance in question.

ence and morals of the community.

It is well known that keepers of junk

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 to such places to pledge or otherwise dispose license and incurred the penalty imposed can of their ill-gotten gains; Marmet v. State, 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 communities. Norristown is a borough but has the population of a city.

nance.

A junk dealer is one who buys and sells old metal, rope and rags.

The defendant conducts his junk business at No. 603 Sandy Street, in the Borough of Norristown.

That the Commonwealth has the right under the exercise of her police powers to regulate the business of junk dealers is well established; Com. v. Mintz, 19 Pa. Superior Ct. 283.

In this case the constitutionality of the Act of April 11, 1899, P. L. 37, relating to keepers of junk shops was involved. The court said:

The power to enact a statute or ordinance under the exercise of the police power necessarily embraces the power to impose a license fee or penalty to enforce the regulation. Without such power the purpose of the ordinance would be defeated and its benefits would be lost to the community.

The contention of the defendant that a junk dealer follows a legitimate business and is, therefore, not subject to any police regulation or supervision, can not be sustained. 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 judgment, 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. Such a business appeals to the necessity and

If the State may enact such a police regulation, then the question arises, whether the

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