(227 Pa. 290) HUNT v. PHILADELPHIA & R. RY. CO. (Supreme Court of Pennsylvania. Feb. 21, 1910.) MASTER AND SERVANT (§ 88*)-INJURIES TO Where defendant railroad company was rightfully using the tracks of plaintiff's employer, another railroad company, the plaintiff is not a "quasi employé" of defendant company, within Act April 4, 1868 (P. L. 58), providing that, when any person shall be injured while employed about the premises of a railroad company, of which he is not an employé, the right of action shall be such only as would exist if he were an employé. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 149; Dec. Dig. § 88.*] Appeal from Court of Common Pleas, Philadelphia County. Action by Howard A. Hunt against the Philadelphia & Reading Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed. Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, ELKIN, STEW- Wm. Clarke Mason, for appellant. Thomas Leaming and John R. K. Scott, for appellee. too clear to need discussion. That act pro- (227 Pa. 284) Feb. 21, In re MICHENER'S ESTATE. Appeal of RUMSEY et al. (Supreme Court of Pennsylvania. 1910.) WILLS (§ 821*)-CONSTRUCTION-GIFT OF INCOME DISTRIBUTION OF Residue. tees to average the income of his estate, and to pay to his sister the income of $10.000 for life, and the income of $5,000 to each of his two nieces for life, and created other trusts, and directed distribution on the death of his wife and daughter. Held, that the three annuitants were entitled, after the other trusts had termi Testator directed his executors and trus MESTREZAT, J. This action was tried before a jury, and resulted in a verdict for the plaintiff. The trial judge refused binding instructions for the defendant company; but the court in banc, on motion of counsel, subsequently entered judgment for the defendant under the act of April 22, 1905 (P. L. 286). The plaintiff appealed, and assigned as error the granting of defendant's motion for judgment non obstante veredicto. The judgment was reversed by this court, and the trial court was directed to enter Judgment upon the verdict. Hunt v. Phila-nated and his wife and daughter had died, to delphia & Reading Railway Co., 224 Pa. 604, 73 Atl. 968. The judgment having been entered below as directed by this court, the defendant has taken this appeal, and assigns for error the action of the court in declining to charge that "under all the evidence in this case your verdict must be for the defendant." It will therefore be observ ed that on the former appeal taken by the 'plaintiff we held that under the evidence the case was for the jury; and we are now asked to say, on this appeal taken by the defendant company, that the case was not for the jury, and that the court should have directed a verdict for the defendant company. have respective sums from which their annuities the distribution of the remainder of the estate. would be paid set aside, but could not object to [Ed. Note. For other cases, see Wills, Cent. Dig. § 2117; Dec. Dig. § 821.*] Appeal from Orphans' Court, Philadelphia County. In the matter of the estate of Israel Mich ener. From a decree dismissing exceptions to adjudication, Emma G. Rumsey and Anna G. Rumsey appeal. Affirmed. In addition to the facts set forth in the opinion of the Supreme Court it appeared that by the seventh item of the will of Israel Michener the testator directed his executors to "average the income of all the investments of my estate and to pay over to my sister Mary Michener the income of the sum of ten thousand dollars for and during the term of her natural life-And also to pay over to my niece Emma G. Rumsey the income of the sum of five thousand dollars for and during After a reargument, and further consideration, we are not convinced that our former Judgment is erroneous. We did not discuss the effect of the act of April 4, 1868 (P. L. 58), in the opinion filed in the former case, as under our cases we regarded the question •For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes the term of her natural life-And also to pay over to my niece Anna G. Rumsey the income of the sum of five thousand dollars for and during the term of her natural life—And if either of my nieces shall die leaving children living at the time of her decease, then my executors and the survivor of them shall pay over to such children who may be living at the time of the death of either of my nieces the amount of which their mother during her life received the income-And in case both of my said nieces shall die and only one of them shall leave a child or children living at time of her decease then my executors and the survivor of them shall pay over to such child or children the whole sum upon which both of my said nieces received the income-If either of my said nieces shall die without leaving children living at the time of her death then my executors and the survivor of them shall pay over to the survivor of my said nieces the income of the sum of ten thousand dollars during her natural life-And if the survivor of my said nieces shall die without | leaving children living at the time of her death then this sum of ten thousand dollars shall become part of my residuary estate." of them to pay over to my brother John H. Michener the sum of twenty-five thousand dollars and to distribute the remaining portion among my nephews Harry G. Michener, Frank L. Michener, Joseph G. Michener, William N. Michener, Charles G. Michener and John Hanson Michener in equal proportions." By the second item of his will the executors were directed to convert the personal estate into money, and "dispose of as hereinafter directed" in the will. In 1903 an account of the personal estate was filed by the executors. The wife and daughter of the testator having previously died, the account was adjudicated and distribution made to the residuary legatees; $30,000 having been set aside as a fund of which the income was directed to be paid to the appellants. Since that time the appellants have been receiving, without objection, the income from the mortgage thus set aside by the court. The second account of the executors was filed in 1907, and was an accounting of the proceeds of the sale of certain real estate. Pending the adjudication, a petition was filed by the appellants for a review of the adjudication of 1903, in order that the bequests of the income of $30,000 might be declared charged upon the whole estate of the decedent. The petition was refused, the lower court, in its opinion, stating that the appellants had been guilty of laches. The Supreme Court upon appeal affirmed the lower Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ. Horace M. Rumsey, for appellants. John G. Johnson and Maurice Bower Saul, for appellees. The remaining income was, under the eighth item of his will, to be paid one-half to his wife and one-half to his daughter for their lives. Upon the death of either the wife or daughter the executors were directed to pay to the survivor three-fourths of the income, and from the remaining one-fourth he direct-court, per curiam. ed his executors to pay to each of his nieces, the appellants, the income of the additional sum of $5,000, further providing in the same paragraph: "Of the balance of this one fourth part of my estate after providing for the bequests to my sister and nieces mentioned in this item of my will I direct my executors and the survivor of them to pay over to my PER CURIAM. We concur in the conclubrother John H. Michener one half of the re- sion stated in the opinion of the learned presmaining sum and to distribute the balance ident judge of the orphans' court that the among my nephews, Harry G. Michener, rights of the appellants were fixed by the adFrank L. Michener, Joseph G. Michener, Wil- judication of the orphans' court filed in 1903, liam N. Michener, Charles G. Michener and and by the decree of that court on a petition John Hanson Michener in equal proportions." for review, which was affirmed by this court By the ninth item of the will, it was pro- in Michener's Est., 225 Pa. 66, 73 Atl. 1059. vided: "Upon the death of my wife and But aside from the question of res adjudidaughter I direct my executors and the sur-cata, the contention of the appellants is not vivor of them to pay over to my sister Mary well founded. The gift to them was not of Michener the income of the additional sum of a moiety of the entire income, but of the infive thousand dollars for and during the term come of a moiety of the estate. The direction of her natural life and to pay over to my in the seventh item of the testator's will is niece Emma G. Rumsey the income of the to "average the income of all the investments additional sum of five thousand dollars for of my estate and to pay over to my sister and during the term of her natural life and Mary Michener the income of the sum of ten also to pay over to my niece Anna G. Rumsey thousand dollars for and during the term of the income of the additional sum of five thou- her natural life-And also to pay over to my sand for and during the term of her natur- niece Emma G. Rumsey the income of the al life with the same disposition of these ad- sum of five thousand dollars for and during ditional principal sums of which my nieces the term of her natural life-And also to pay shall receive the income during life and un- over to my niece Anna G. Rumsey the income der the same conditions as specified and di- of the sum of five thousand dollars for and rected in the seventh Item of this my last during the term of her natural life." This will and testament-Of the remainder of my direction applied to the income while the es to distribute became operative upon the death | ing Annuities, which were dismissed at the of his wife and daughter. Otherwise the di- end of an opinion filed by Penrose, J., which rection to distribute upon their deaths was was as follows: meaningless. All of the trusts except those for the appellants having terminated, and the gift of income to them having been secured by the setting aside of an ample sum, there is no reason why the balance of the estate should not be distributed. The decree is affirmed. (227 Pa. 288) In re PAGE'S ESTATE. Appeal of BREUIL (Supreme Court of Pennsylvania. Feb. 21, 1910.) WILLS (§ 497*)-CONSTRUCTION-DESIGNATION OF DEVISEES. Testator provided that the income from a share of his estate should be paid to a nephew for life, and after his death to go to any child or children of the nephew living at the time of his death in fee simple. Held, that the children living at the time of the latter's death were entitled to the principal, to the exclusion of the deceased children of the nephew. [Ed. Note.-For other cases, see Wills, Cent. Dig. 88 1080-1086; Dec. Dig. § 497.*] Appeal from Orphans' Court, Philadelphia County. In the Matter of the Estate of George W. Page. From the decree dismissing exceptions of Hartman R. Breuil, by his guardian, the Pennsylvania Company for Insurance on Lives and Granting Annuities, he appeals. Affirmed. From the record it appeared that George W. Page died on January 21, 1875. Under the terms of his will he divided his residuary estate into six parts, and created trusts as to each part. As to the trust for two-sixths part he directed that the income should be paid to his nephew, James F. Breuil, to and for all the term of his natural life, and from and immediately after the decease of his nephew, James F. Breuil, then in trust, "to grant, distribute and convey the full twosixths part of my said residuary estate to and among any child or children of him the said James F. Breuil living at the time of his death absolutely and in fee simple." At the time of the death of George W. Page, the nephew, James F. Breuil was living. There were also living at that time Frank Breuil "Campbell's Estate, 202 Pa. 459 [51 Atl. 1099], was not intended to change the wellsettled principle of interpretation that in the absence of evidence of a contrary intention afforded by the will itself a gift to 'children' will not be understood as including any more remote class of descendants. The will in that case gave vested estates to the children of the first takers, a daughter of the testator, subject to a limitation over to his other 'children,' per stirpes, if she should die without leaving 'children'; and as conditions subsequent, terminating a vested estate, are construed most strongly in favor of the first taker and against forfeiture, and if in any permissible sense of the words of the condition there has been no breach, that view will be adopted by the court, it was held that the gift to the other children of the testator did not take effect if a grandchild of the daughter survived her. The will in the present case differs most radically from that in Campbell's Estate. The estate of those entitled at the termination of the life estate is contingent, purely. The gift is to the 'children' of the first taker, living at the time of his death; and being his 'child' is no less an integral part of the description of the person then becoming entitled than is the fact of being then alive. It may be added that the provisions with regard to the devolution of the other shares of the testator's estate are entirely different from what is said as to the shares of the nephew, and 'where a testator uses a different word or phrase he will be presumed to have a different meaning.' "Exceptions dismissed, and the adjudication confirmed absolutely." Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ. Frank P. Prichard and Henry P. Brown, for appellant. George Wharton Pepper and James F. Hagen, for appellee. PER CURIAM. The order of the court dismissing exceptions and confirming the adjudication is affirmed on the opinion of the learned president judge of the orphans' court. (227 Pa. 305) SCHIENLE v. ECKELS. (Supreme Court of Pennsylvania. Feb. 21, 1910.) LANDLORD AND TENANT (§§ 130, 180*) and Hartman Breuil, children of James F. Breuil. James F. Breuil died April 21, 1909, leaving Frank Breuil surviving. Hartman Breuil, the other son, died August 11, 1908, leaving surviving Hartman R. Breuil, Jr. Hartman R. Breuil, Jr., claims one-half of the said balance of principal estate; that the word "children," as used by the testator, in-1. cluded "grandchildren." The auditing judge refused the request to award one-half of the estate to Hartman R. Breuil, Jr. Exceptions were filed on behalf of the said Hartman R. [Ed. Note.-For other cases, see Landlord and Breuil, Jr., by his guardian, the Pennsylvania Tenant, Cent. Dig. § 470-481, 715-729; Dec. Company for Insurances on Lives and Grant-Dig. §§ 130, 180.*] EVICTION OF TENANT-REMEDY. - Where a landlord invaded the rights of his tenant, the latter may sue on the covenant for quiet enjoyment, or treat the eviction as a trespass, and sue for damages. For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1307 to date, & Reporter Indexes 2. 1.ANDLORD AND TENANT (§ 180*)-EVIDENCE | to treat the eviction as a trespass upon his OF TENANT-NOMINAL DAMAGES. Where, in an action for wrongful eviction, the evidence establishes such fact, the tenant is entitled to nominal damages at least if no other element of damages is proved. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 723-728; Dec. Dig. 180.*] 3. LANDLORD AND TENANT (8 180*)-EVICTION OF TENANT-ACTUAL DAMAGES. Where, in action by a tenant for wrongful eviction, he shows an eviction before the end of the period for which he has paid rent in advance, it is sufficient to establish actual damages. [Ed. Note.-For other cases, see Landlord and Tenant, Dec. Dig. § 180.*] Appeal from Court of Common Pleas, Philadelphia County. Action by John C. Schienle against Charles A. Eckels. Judgment for defendant, and plaintiff appeals. Reversed. At the trial it appeared that the plaintiff occupied two rooms and a bath in a residence in the city of Philadelphia. He was in possession under a written lease at rental of $16 per month payable in advance. The plaintiff showed that he had paid his rent in advance for the month of December, 1905, and that on the 13th day of that month the defendant had evicted him by cutting off heat and light, and making such alterations in the building that the plaintiff was forced to remove from the premises. The court entered a compulsory nonsuit which it subsequently refused to take off. ELKIN, J. In our consideration of this case we are not aided by the reasons which moved the learned court below to enter the nonsuit nor for the refusal to take it off. The form of the action is trespass and the cause the alleged wrongful eviction of appellant as tenant. If the eviction was wrongful, the injured party has a remedy in an action for damages. The burden was on plaintiff to show a wrongful eviction, but in our opinion this burden was met by the introduction of evidence sufficient to be submitted to the jury on this question. If the jury should determine that the tenant had been wrongfully evicted, nominal damages at least would follow, even if no other elements of damage had been proved. One who wrongfully invades the rights of another is a trespasser; and this rule applies to the unlawful invasion of the rights of a tenant by his landlord. It is no doubt true an action on the covenant for quiet enjoyment, if there be such covenant either expressed or implied, may lie, but the tenant may elect rights and sue for damages. This is what the tenant did in the present case. The right to thus proceed is based upon the theory that, if there was a wrongful eviction, there was a willful invasion of the rights of another, and the injured party is entitled to termined, even if no substantial injury was maintain his action to have his rights deactually done. Williams v. Esling, 4 Pa. 486, 45 Am. Dec. 710; Schnable v. Koehler, 28 Pa. 181; Hutchinson v. Schimmelfeder, 40 Pa. 396, 80 Am. Dec. 582. It is not necessary to rest this case on the question of nominal damages because if there was an eviction before the end of the period for which the appellant had paid rent in advance, and this was the proof, clearly this was evidence of actual damage to go to the jury. We do not deem it necessary to discuss the question of actual damage claimed for the reason that of exemplary damages and other elements all these questions can be properly presented in the court below when the case is again tried. We are all of opinion, however, that the case was for the jury, and that error was committed in entering the nonsuit. Judgment reversed and a venire facias de novo awarded. (227 Pa. 297) CORBITT v. PHILADELPHIA RAPID TRANSIT CO. (Supreme Court of Pennsylvania. Feb. 21, 1910.) STREET RAILROADS (§ 114*)—Operation—ACCIDENT TO PERSON ON OR NEAR TRACK-CONTRIBUTORY NEGLIGENCE-EVIDENCE. In an action against a street railway to recover for personal injuries received in crossing a bridge over which two tracks ran, evidence held to authorize nonsuit for contributory negligence. [Ed. Note.-For other cases, see Street Rail roads, Cent. Dig. §§ 248-250; Dec. Dig. § 114.*] Appeal from Court of Common Pleas, Philadelphia County. Action by William D. Corbitt against the Philadelphia Rapid Transit Company. From an order refusing to take off nonsuit, plaintiff appeals. Affirmed. Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ. Ira Jewell Williams and Simpson & Brown, for appellant. Thomas Leaming and William M. Stewart, Jr., for appellee. PER CURIAM. On the north side of the bridge on which the plaintiff was injured there was a plank sidewalk seven feet wide. The rest of the surface of the bridge was used as a roadway for wagons, and there were two tracks of the defendant's road on it. The southernmost track was at one point within 4 feet of the rail of the bridge. In Argued before FELL, C. J., and BROWN, J. Barton Rettew, for appellant. Saml PER CURIAM. This appeal is from an order dismissing a petition for the opening and correction of a decree entered in the common pleas and affirmed by this court on appeal. A clear and concise history of the case will be found in the opinion of our Brother Potter in Adams v. Hubbard, 221 Pa. 511, 70 Atl. 835. We do not find any question raised by the assignments of error that has not been decided or that could not have been raised for decision in the original proceeding. The former adjudication therefore must be considered final. The appeal is dismissed. crossing the bridge going west, the plaintiff | cree dismissing petition for rehearing, plainused the sidewalk. As he approached the tiff appeals. Affirmed. bridge on returning, he was on the foot pavement on the south side of the street. When he reached the bridge, he found that the pavement abruptly ended and a hand rail extended across it. Instead of crossing the street to the north side, where he knew there was a good sidewalk over the bridge, he followed a narrow, rough, irregular dirt path with sloping sides that extended over the bridge between the tracks and the south rail of the bridge. Before entering on this path, he observed that the space between the tracks and the rail became gradually narrower because of their convergence. The 'night was dark. There were no lights on the south side of the bridge, and, as he advanced, he was unable to see the car tracks and bare ly able to see the bridge rail. How the accident to the plaintiff happened does not clearly appear from his testimony but was left largely to conjecture. He testified that he was struck from behind by something, he did not know what, and thrown down and bruised. He was not on the car track, and BLEW et ux. v. PHILADELPHIA RAPID evidently he was not struck by any part of the front of the car. If touched by it at all, it must have been by the projecting side as it passed him. The negligence alleged was that the car was carelessly managed. The only proof in support of this was that it was running rapidly, and the gong was not sounded. It was in a suburban section, was brilliantly lighted inside, the headlights were burning, there was no crossing near, and the track in front was clear. There was no occasion to slacken speed or to sound the gong, because there was no danger to any one crossing the bridge in the ordinary way. The plaintiff was also properly adjudged to have been negligent in turning from the safe way provided and choosing one that he saw was dangerous. The judgment is affirmed. APPEAL AND ERROR (§ 1096*) - SECOND AP- Where on appeal from a decree in equity dismissing a petition for rehearing and modification of a prior decree the question raised by the assignments of error had been decided or could have been decided on the appeal from the original proceeding, the dismissal of the petition would be affirmed. [Ed. Note.-For other cases. see Appeal and Error, Cent. Dig. §§ 4355, 4356; Dec. Dig. 8 1096.*] TRANSIT CO. (227 Pa. 319) (Supreme Court of Pennsylvania. Feb. 21, 1910.) CARRIERS (§ 316*) - STREET RAILWAYS - INJURY TO PASSENGERS EVIDENCE. Where an injury to a passenger on a street car is caused by a collision between the side of the car while on its own track and a wagon, not under the control of the street railway company, no presumption of negligence arises in favor of the passenger against the street car company. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1261, 1262, 1283-1294; Dec. Dig. § 316.*] Appeal from Court of Common Pleas, Philadelphia County. Action by Robert M. Blew and wife against the Philadelphia Rapid Transit Company. Verdict for defendant, and plaintiffs appeal. Affirmed. Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ. Joseph Hill Brinton, John McClintock, Jr., and A. Florence Yerger, for appellants. Thomas Leaming and Owen J. Roberts, for appellee. PER CURIAM. The plaintiff was a passenger on the defendant's cars running north She was seated on the on Eighth street. east side near the middle of the car on a longitudinal seat, with her back to a window. A large ash cart was east of the track and near it. She testified that the car in passing the cart scraped against it, and the wheel of Appeal from Court of Common Pleas, Phil- the cart broke through the window and adelphia County. Action by John Quincy Adams against George L. Hubbard and others. From a de struck her back, and she was thrown to the floor. Her testimony was uncorroborated. and was in direct conflict with her written For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes 76 A.-2 |