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Work Legal Record
Record symbolical where actual delivery is practic-

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.

trustee acting for a bank to secure the bank for money advanced on their note, and the trustee leased the property to the original owners who obtained possession of it, it was held that a bill of sale was invalid as to creditors of the owner of the property. In delivering the opinion of the Court, Justice Fell says: "When by the action of the parties there has been a separation of the title and possession of personal property, courts will scrutinize the transaction to determine the real intention, and but little regard will be given to the form which it has taken or the name by which it is called. The law is liberal in not requiring an actual change of possession when it will defeat the lawful purpose of the parties. But there has been no deviation from the general rule that delivery of possession is indispensable to transfer a title, by the act of the owner, that shall be valid against creditors. In Clow v. Woods, 5 S. & R. 275, which is said by Judge Sharswood in McKibbin v. Martin, 64 Pa. 352, to be 'the magna charta of our law on the subject', it was decided that there is no difference in the application of the rule between absolute sales and contingent sales or mortgages, and that as to both the retention of possession when actual delivery is practicable, is a fraud in law. In Jenkins v. Eichelberger, 4 Watts 121, Gibson, C. J., said: 'To tolerate a lien severed from the possession by any device whatever, would be pregnant with all the mischiefs of colorable ownership; and to sanction it at the expense of the community could be justified but by the accomplishment of more important objects than individual accommodation.' These decisions have been followed in numerous cases which it is needless to cite. In a review of the cases in this state by the American editors of 1 Smith's Leading Cases, p. 78, it is said: 'That mortgages are within the rule has been expressly decided; and it is now established in Pennsylvania, as a general principle of law, that by no device whatever, whether of sale and agreement of resale, or by the title at the time of the purchase being vested in one who is a surety for the purchaser who takes possession, can a lien be created on personal property separate from the possession of it. The delivery must be actual and not merely

Applying these cases to the facts in the present case, we must conclude that the plaintiff had no title to the automobiles in question as against the creditors of John W. Kelchner, and must, therefore, discharge both rules. The rule for judgment non obstante veredicto and the rule for a new trial are both discharged.

Kohr v. Fox Baking Co.

Practice-Statement--Specific Averments.

Plaintiff's statement alleged damages caused by his wife swallowing a pin contained in bread manufactured, sold and delivered to her. The defendant moved to strike off the statement the bread or the swallowing of the pin, or the because it failed to give the date of delivery of value of the wife's services, nor did it allege any negligence on the part of defendant or its employes, or specify any act from which negligence could be inferred. HELD, that the rule must be made absolute.

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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 ob-
cise 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."
of the "Practice Act of 1915." But they
cannot be finally ruled upon by the Court
which does not really raise the question
on this motion to strike off the statement,
whether or not the plaintiff's cause of action
is a good one, but only whether it is set
forth in the statement with the particularity
required by the "Practice Act of 1915" and
the rules of this Court; Barto v. Shaffner,
26 Dist. Rep. 97; Ehrenstrom v. Hess,
No. 1, 26 Dist. Rep. 992.

This is an action of trespass brought by Jesse Kohr and Lizzie Kohr, his wife, to recover damages for injuries resulting to the latter from swallowing a pin, contained in bread which the defendant had sold and delivered to the plaintiff.

As already seen, the Practice Act has not

The defendant's objections to the plaintiff's statement are, that it fails to give the dates of the delivery of this bread to the plaintiff, or of the swallowing of the pin by the plaintiff's wife, neither does it give the value of the wife's services by the week, been sufficiently complied with in the avermonth, 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 defendant from which negligence could be inferred.

It is the apparent purpose of the "Practice Act of 1915" to require that the material facts intended to be proven and relied upon be specifically set forth on the face of their by either party at the trial of the case, shall shall thereafter be restricted thereto, and it respective pleadings, and that both parties provisions are literally and fully complied is the duty of the Court to see that its


These are material facts, proof of which at the trial of the case, will be necessary to a recovery by the plaintiff, and the defendant is entitled to a sufficiently specific aver ment of the same to enable it to understand

the real nature and extent of the plaintiff's
claim. They should, therefore, have been set
forth with reasonable certainty in the state-
ment. As no 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.

C. P. of

The defendant alleges that it had many Northampton Co. employees engaged in the making and deliv- McLaughlin v. Lehigh Valley Railroad

ery at time



livery of the bread in question in this case, and that unless more accurate dates, and more specific averments of fact are given, an affidavit of defense cannot be framed, or an intelligent defense made to the plaintiff's claim.

Compensation Appeal Liability under
Federal or State Liability Acts-Burden
of proof.

I. In an appeal from the Workmen's Com-
the Federal Employers' Liability Act governs the
pensation Board where the only defense is that
case to the exclusion of the State Compensation
Act, the burden is upon the defendant to prove
the facts necessary to show that the decedent was
engaged in interstate commerce at the time of the


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The defendant's objections that the statement contains no allegation that the negligence of the defendant or its employees caused the injury to plaintiff's wife complained of, and that no specific act of the defendant is alleged from which negligence! 2. Where the last duty in which a railroad could be inferred, also raise the question yard employee was 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. 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 a point within the state, does not establish that the decedent was "engaged in interstate commerce" at the time of the accident.

court is: Was the decedent engaged in interstate commerce at the time of injury? The contention of the appellant is that as this train, which was partly made up in

Sur appeal from decision of Workmen's South Bethlehem, was engaged in interstate commerce and McLaughlin was assisting in the make up of that train, he was, there

(Pa.) Compensation Board.

for the claimant.

W. H. Kirkpatrick and D. H. Wilson, fore, engaged in interstate commerce and subject to the federal law and not to the state law. The test, as laid down by the authorities, of employment in interstate commerce, is whether the employe when injured

E. J. & J. W. Fox, for defendants.

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 | 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 went through and shortly afterward McLaughlin was found dead near the track on which this train passed, presumably having been killed by the east bound train. McLaughlin was last seen alive about fifteen or twenty minutes before the accident. At that time he was uncoupling the switching engine from the passenger car which he had just attached to the through train from Jersey City. The passenger car which he attached to the through train was an intra

all its employes as being engaged in interstate commerce within the meaning of the acts of congress, without reference to the duties they were performing at the time of the injury, it would follow that all such employees no matter how incidentally or remotely their duties had to do with interstate commerce generally, or what kind of commerce they were engaged in when injured, would come within the purview of the Federal statutes when they brought an action to recover damages for personal injuries. Το

C. P. of

so hold would mean the wiping out of all
state regulation and authority in matters re-
lating to the personal injuries of railroad
employees. The cases have not gone so far,
and we do not see how the rule can be laid
down so broadly without doing violence to
the plain language of the commerce clause
of the constitution which limits the Federal
power to interstate subjects. Our view is
that in cases like the one at bar, commerce
must be regarded as of two kinds, intra and
interstate, and the status of the employees
must be determined by the kind of com-
merce they are engaged in at the time the
injuries were sustained. If they were en-
gaged in interstate commerce the Acts of
Congress apply; if they were engaged in
Report of George 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
of the injury which counts, and if the em-
ploye, at the time of the injury, is engaged
in a duty connected with intrastate com- January 28, 1918. STEWART, P. J.-
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 supple-
to 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 con-
commerce 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 employe 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

of intrastate business the act does not apply."
In the case at bar the appellant has failed,
in the burden cast upon it, to establish that
McLaughlin at the time he was injured
was an interstate employe.
Appeal dismissed.

Northampton Co.

Controller's Report

County controller-Annual report of.

The annual report of the county controller made to the court of common pleas of the county, is to be made by the acting controller, and not by an ex-controller.

James W. Fox, for Dr. Robley D. Walter.
George F. P. Young, per se.

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Vol. XXXI THURSDAY, FEBRUARY 28, 1918. No 42.

In this house there are two rooms, one of them used as an office and the other as a bedroom furnished by the defendant. The office room is used by the defendant for his busidess of a real estate broker and operator. Another person occupies the office room, who transacts business for himself, and also

published in such newspapers published in the county, as the controller may direct, at

dollars ($1000.00) in any one year. The publication meant by that section is the report of the controller for the time being, and not that of a preceding controller. It, therefore, follows that the report of George F. P. Young, Esq., is not entitled to be either filed or printed at the expense of the county. The report of the present controller is the legal report, and it is, now, filed, and should be published by him.

a cost which shall not exceed one thousand receives the defendant's mail and forward it to him in Florida or wherever he may be The bedroom is used as a place to keep clothing and also a place where he can sleep while in Philadelphia. As between him and his sister, these two rooms are rated at five dollars per month. When he is not in Philadelphia, she has the privilege of renting the bedroom. If she is short in her expenditures he gratuitously helps her out. These were the conditions which existed before his marriage, and at that time they Delaware Co. would fairly support a declaration of an intention by him, that he was making the Locust street house his place of residence. The burden now shifts to the plaintiff to show that a change of residence took place by reason of the marriage. He was married

Work Legal Record

C. P. of

Wolford v. Warrington
Foreign Attachment Residence When
Writ Quashed.

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Where a man having a residence in Pennsylvania, marries a woman who owns a hotel in 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 honeymoon 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 came North in the spring of 1917, he and

William Taylor for rule.

J. H. Hinkson and J. D. Ledward, his wife lived in the Locust street house but


about a week, during the summer of 1917. With this exception, she lived at Stone Harbor, a summer resort, and he spent the week-ends with her, and when he was not traveling, lived in the Locust street house. Was his home in Florida or in Philadelphia? For Northern men and women, Florida is a place of winter resort. The defendant has not voted for a number of years. It does not appear where he paid his personal tax. The question is this, does a man who has a residence in Philadelphia lose it by going with his wife to Florida to live in her hotel,

In support of this burden the plaintiff shows that at that time the defendant was in Florida, living as a boarder with his wife in a hotel belonging to her. Where a man 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 residence 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.

December 3, 1917. BROOMALL, P. J. This writ was issued on November 15, 1916. On May 1, 1917, the defendant procured this rule to quash the writ. The burden is on the plaintiff to show that the defendant was not a resident of Pennsylvania, and was not in Delaware County on November 15, 1916.

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