(222 Pa. 514) In re JOHNSTON'S ESTATE. (Supreme Court of Pennsylvania. Jan. 4, 1909.) 1. EXECUTORS AND ADMINISTRATORS (8 510*) -ASSIGNMENTS OF ERROR-EXCEPTIONS TO ACCOUNT. Exceptions to an executor's account must be set forth in the assignments of error in their exact words. [Ed. Note. For other cases, see Executors and Administrators, Dec. Dig. § 510.*] 2. EXECUTORS AND ADMINISTRATORS ( 510*) -ASSIGNMENTS OF Error. Assignments of error on exceptions to an executor's account must run against the decree, and not the opinion of the court. [Ed. Note. For other cases, see Executors and (222 Pa. 470) SCHLEMMER v. BUFFALO, R. & P. RY. (Supreme Court of Pennsylvania. Jan. 4, 1909.) Where a brakeman attempted to make a coupling in a dangerous way when his attention was directly called to a safer way and twice raised his head, though especially cautioned at the time of the danger of so doing, no recovery can be had for the injuries received. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 755; Dec. Dig. § 240.*] 2. NEGLIGENCE (§ 80*)-CONTRIBUTORY NEGLIGENCE. Any contributory negligence bars recovery without regard to the negligence of the other party. [Ed. Note. For other cases, see Negligence, Cent. Dig. § 84; Dec. Dig. § 80.*] Appeal from Court of Common Pleas, Jef In the matter of the estate of S. A. Johnston. From a decree dismissing exceptions to account of John B. Taylor, Katharine J. Sut-ferson County. ton appeals. Dismissed. Argued before MITCHELL, C. J., and EL KIN, FELL, BROWN, MESTREZAT, POTTER, and STEWART, JJ. Action by Catherine Schlemmer, now Catherine Craig, against the Buffalo, Rochester & Pittsburg Railway Company. From a judgment for defendant notwithstanding the John P. Blair, for appellant. D. B. Taylor, verdict, plaintiff appeals. Affirmed. for appellee. The following is the opinion of Reed, P. J., of the court below: "At the trial it appeared that the action was brought to recover damages for death of plaintiff's husband employed as a brakeman by the defendant. The accident happen BROWN, J. This appeal is from the action of the court below in disposing of 10 exceptions to the account of John B. Taylor, administrator of the estate of S. A. Johnston, deceased. By these exceptions the appellant sought to surcharge the accountant on cer-ed between 8 and 9 o'clock on the evening of tain items with which he had charged himself at their appraisement in the inventory; to have credits disallowed for depreciation in the appraised value of other items; to have him charged with more interest than he charged himself with; and to reduce his commissions and the fee charged by his attorney. Five of these exceptions, among them being those relating to the commissions of the accountant and the attorney fee, were dismissed, and the remaining sustained, resulting in a decree surcharging the accountant with $10,907.05. Our examination of the record has satisfied us that all of the exceptions were properly disposed of and that the decree made was proper, but our reasons for reaching this conclusion would be out of place, as the decree has not been assigned as error. If it is correct, as it must be assumed to be in the absence of an assignment that it is error, the reasons given by the learned judge in arriving at it are unimportant and ours for sustaining it are equally so. Fullerton's Estate, 146 Pa. 61, 23 Atl. 321. The dismissal of no one of the exceptions to the account is assigned as error. If any one of them was erroneously dismissed, it ought to appear in its exact words in the assignment of error to its dismissal. Wright's Estate, 155 Pa. 64, 25 Atl. 877. No such assignment is before us. Appeal dismissed at appellant's costs. April 5, 1900, while the deceased was at- A. J. Truitt and Charles Corbet, for appel. lant. C. Z. Gordon, C. H. McCauley, and John G. Whitmore, for appellee. PER CURIAM. It is the settled law of Pennsylvania that any negligence of a party injured, which contributed to his injury, bars his recovery of damages without regard to the negligence either greater or less than his own of the other party. The present is a clear case of contributory negligence within this rule. The evidence is indisputable that the unfortunate decedent not only attempted to make the coupling in a dangerous way when his attention was directly called to a safer way, but also did it with reckless disregard of his personal safety by raising his head, though twice expressly cautioned at the time as to the danger of so doing. Judgment affirmed. fair and impartial trial, was not erroneously denied, where, before the press had discussed the case at all, the jury, on the first trial, returned a verdict for the exact amount of the verdict upon the fourth and last trial, and where two other juries had returned verdicts of about the same amount, and where counsel for the party applying for the change had invited such discussion by replying in a lengthy article in defense of such party to the first comment made by the press. [Ed. Note. For other cases, see Venue, Cent. Dig. § 73; Dec. Dig. § 50.*] Appeal from Court of Common Pleas, Cambria County. Trespass by Catherine Burns against the Pennsylvania Railroad Company to recover damages for the death of her husband. Judgment for plaintiff for $12,000, and defendant appeals. Affirmed. Argued before MITCHELL, C. J., and 1. APPEAL AND ERROR (8 248*)-PRESENTA-FELL, BROWN, MESTREZAT, POTTER, TION AND RESERVATION OF GROUNDS OF REVIEW-EXCEPTIONS. ed of. [Ed. Note. For other cases, see Arbitration and Award, Cent. Dig. § 348; Dec. Dig. § 68.*] 3. ARBITRATION AND AWARD (§ 68*)-ARBITRATORS AND PROCEEDINGS-OBJECTIONS. Where, at the time exceptions were filed to an award of arbitrators, the party excepting also appealed from the award, the appeal remanded the case to the common pleas, and thereafter it was immaterial what disposition was made of the exceptions, so far as it affected the subsequent trial. [Ed. Note. For other cases, see Arbitration and Award, Cent. Dig. § 343; Dec. Dig. § 68.*] 4. CONTINUANCE (§ 17*)-GROUNDS-WANT OF PREPARATION. Where a cause had been pending for over five years, and had been tried several times in the common pleas, and had been three times in the Supreme Court, a motion to strike it from the June trial list, on which it was placed April 18th for undue haste, and postpone it to the next term, several months thereafter, was properly overruled. [Ed. Note. For other cases, see Continuance, Cent. Dig. § 14; Dec. Dig. § 17.*] 5. VENUE (§ 72*)-CHANGE OF VENUE-BUR DEN OF PROOF. The burden is upon applicant for a change of venue to show that it could not have a fair and impartial trial in that jurisdiction. ELKIN, and STEWART, JJ. H. W. Storey, for appellant. E. T. McNeelis, for appellee. MESTREZAT, J. This case was here on three former appeals. 210 Pa. 90, 59 Atl. 687; 213 Pa. 280, 62 Atl. 845; 219 Pa. 225, 68 Atl. 704. When it was here a year ago, we then expressed regret that we were compelled to remand it for another trial. We are now pleased to say that our judgment on this appeal will terminate the litigation which has been pending for nearly six years. Such delay frequently results in a denial of justice and contravenes the maxim: "Interest reipublicæ ut sit finis litium.” We have examined with care the twelve assignments of error, and we fail to find any merit in a single one of them. The sixth, seventh, eighth, and ninth assignments are not only without merit, but have no exceptions of record to support them. They need not be considered. The court was clearly right in dismissing the exceptions to the award of arbitrators. They were frivolous and without substance, and the only apparent excuse for filing them was to delay the final adjudication of the cause. The rule to arbitrate was taken by the defendant Company, the arbitrators were regularly and legally chosen, and after a hearing in which both parties participated, an award in due form was filed. The exceptions to the award by the defendant was to the alleged miscon duct of the arbitrators. As shown by the opinion of the court in refusing to sustain the exceptions, the allegation of misconduct was wholly unfounded. What was done by the arbitrators was done in the presence of [Ed. Note.-For other cases, see Venue, Cent. counsel of both parties, and no objection was Dig. § 127; Dec. Dig. § 72.*] 6. VENUE (§ 50*)-CHANGE OF VENUE-LOCAL PREJUDICE. A change of venue on the ground that the unfair, improper, and untruthful statements of the press, relative to the case, would prevent a taken thereto until after the award had been filed. The defendant's counsel was present, knew what the arbitrators did, entered no objection whatever to their conduct, but continued the arbitration until the cause was fully heard and disposed of. At the time the exceptions were filed, the defendant also appealed from the award of the arbitrators. The appeal remanded the case to the common pleas, and thereafter it was immaterial what disposition was made of the exceptions, so far as it affected the subsequent trial of the cause. The case was then ripe for trial in court without further delay by reason of the arbitration. The learned judge was unquestionably right in refusing to strike the cause from the June trial list. The case was placed on the list on April 18, 1908, and was tried the 1st day of the following June. In view of the fact that the cause had been pending for over five years, had been tried several times in the common pleas, and had been three times in this court, the defendant company was not in a position to allege undue haste in the trial, or that it did not have an opportunity to prepare for trial. The court in its opinion says: "The cause is regularly placed upon the list, and the action of the prothonotary in placing it upon the list in compliance with præcipe of plaintiff was entirely legal, and indeed any other action on the part of the prothonotary would not have been warranted." This is a construction by the learned court of its own rules with which we will not, under the circumstances of this case, interfere. To strike the case from the June trial list and postpone it to the next term, several months thereafter, as asked for by the defendant company, would have been an infringement of the plaintiff's right to a speedy trial of the cause. The motion to strike the case from the trial list was properly overruled. There was no sufficient ground shown by the defendant company to sustain its application for a change of venue which was presented to the court on the day the case was called for trial. The burden was upon the company to show to the satisfaction of the court that it would not have a fair and impartial trial in that jurisdiction. As the learned judge below correctly says: "There was no proof of any sort presented to sustain the application, and no evidence offered to show that any juror summoned to attend court has been in any wise influenced by the publications complained of." The answer of the plaintiff denied the averments of the petition for the change of venue, and, in the absence of any evidence to support its allegations, the court was warranted in declining to order the change. The cause assigned in the petition was the alleged “unfair, improper, and, in many instances, untruthful statements" of the press of Cambria county relative to the case, producing conditions which prevented a fair and impartial trial of the cause in the county. That the comments of the press had no such effect and did not increase the amount of the verdict is shown by the fact that, before the press had discussed the case at all, the jury on the first trial in December, 1903, returned a verdict for $12,000, which is the exact amount of the last verdict. In view of the further fact that two other juries returned verdicts for $12,537 and $14,480, respectively, it is apparent, we think, that the learned trial judge committed no error in holding that the discussion of the case by the press of Cambria county did not deprive the defendant company of a fair and impartial trial. It may also be observed that, if the press of Cambria county did comment upon the case and discuss its merits, the defendant company, through its counsel, is not entirely without fault in inviting such discussion. From the excerpts from the press, printed as defendant's exhibits in its paper book, it appears that, the second day after the first comment on the case was made by the press, the counsel for the defendant replied in a lengthy article in defense of his company. If therefore the case was tried in the newspapers of the county, the defendant company, by its counsel, and not the plaintiff, was responsible in part for its submission to that tribunal for adjudication. He who invites war must accept its consequences. The other assignments of error are without merit and need not be noticed. The case was unquestionably for the jury, and the court would have committed reversible error in directing a verdict for the defendant company or in entering judgment for it non obstante veredicto. The judgment is affirmed. (222 Pa. 512) burg, for the sum of $30, which check or PHILADELPHIA CO. et al. v. RENNER draft was deposited in the mails for transmis et al. (Supreme Court of Pennsylvania. Jan. 4, 1909.) MINES AND MINERALS (8 79*)-LEASE-RENTPAYMENT. Where an oil lease provides for payment of rent by check or draft, it is no ground for forfeiture that a check sent had printed across its face "payable only through" a named clearing house; the check being perfectly good. [Ed. Note.-For other cases, see Mines and Minerals, Dec. Dig. § 79.*] Appeal from Court of Common Pleas, Greene County. Bill by the Philadelphia Company and the Fisher Oil Company against Baronett F. Renner and Martha J. Renner. Decree for plaintiffs, and defendants appeal. Affirmed. Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ. James J. Purman and Frank W. Downey, for appellants. A. H. Sayers, for appellees. sion and was received by Renner, November 16, 1907, one day before the payment was due. He refused to accept the draft and returned the same by first mail to the lessee upon the ground that across its face were printed the words "payable only through the Pittsburg Clearing House"; the contention then and now being that a draft made payable through the clearing house was not a compliance with the contract. The objection is too technical to be substantial. The contract only provided that the payment could be made by check or draft, and nothing is said about the method of collection. What Renner had the right to demand was a check or draft, drawn by the lessee on a bank which when paid was a compliance with the very letter of the covenant. He received in due time a draft drawn upon a responsible banking institution, calling for the payment of the proper sum to meet the advance rental, and all that he had to do was to deposit it for credit with the bank in which he did business and collection would follow in due course of banking. The fact of payment was what the lessor was interested in and not the method of making it, so long as the terms of the contract were not violated. It was immaterial to the lessor whether the draft was paid over the counter of the banking institution drawn upon or through the clearing house, if in point of fact it was paid or would have been paid and he had received or would have received the benefit of it. That the draft was good is not denied, and that it would have been paid through the clearing house, if presented, is not questioned. Certainly, under these circumstances, complainant was not justified in returning the draft and declaring a forfeiture of the lease. For a long period of years the lessee had paid the quarterly rentals by draft just as was done in this instance, except the former drafts were not made payable through the clearing house, but, as hereinbefore suggested, this at most only affected the method of collection in due course of banking, and did not deny to the lessor any substantial right under the contract. ELKIN, J. As this case has developed, the only question to be determined here is whether at the time this proceeding was instituted | there had been a forfeiture of the lease by failure to pay the rental according to the terms of the contract. The appellants claim the right to declare a forfeiture which the appellees deny. The clause under which a forfeiture is asserted provides that the lease shall become null and void unless a well shall be completed on the premises within sixty days from the date thereof, or unless the lessee shall pay at the rate of $30 quarterly, in advance, for each additional three months such completion is delayed. The well was not completed within 60 days, but the quarterly payments were made from time to time during a period of nine years up to and including the rental due August 17, 1907, as to which payment the controversy in the present proceeding arises. The lease provides that the quarterly payments may be made direct to the lessors, or to Baronett F. Renner, one of the complainants, at Garrison post office | by check or draft. Payment was tendered in due time by a check or draft, drawn upon We find no reversible error, and the decree the Farmers' Deposit National Bank of Pitts- is affirmed at the cost of appellants. For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes (29 R. I. 429) return their verdict," used in said section 5, seems to us conclusive. The ver HART et al. v. SUPERIOR COURT. (Supreme Court of Rhode Island. March 12, dict so signed by the foreman alone is clear 1909.) FORCIBLE ENTRY AND DETAINER (§ 44*)TRIAL VERDICT. Pub. Laws, p. 37, c. 1533, § 5, relating to forcible entry and detainer, provides that, if the jury shall find the complaint supported by the evidence, "they shall sign and return to the court their verdict." Section 6 provides that upon the return of the verdict for the complainant the court shall enter up judgment for restitution of the premises. The form of the statutory writ of restitution provides that "the jur; ors impaneled and sworn by our said justice did return their verdict in writing, signed by each of them." Held, that a verdict signed only by the foreman is irregular, and the proceedings should be quashed, on review of the case by certiorari, under Pub. Laws, p. 39, c. 1533, § 9, authorizing the Supreme Court to quash them for irregularity, especially where it nowhere appears that the corporation making the complaint ever authorized it to be made. [Ed. Note. For other cases, see Forcible Entry and Detainer, Dec. Dig. § 44.*] Richard Hart and others, by a writ of certiorari to the superior court, bring proceed. ings in that court before the Supreme Court for review. Proceedings quashed for irregularities. See, also, 71 Atl. 513. William A. Heathman, for complainants. Julius L. Mitchell, for defendant. PER CURIAM. This is a petition for a writ of certiorari, under the provisions of Pub. Laws, 1908, p. 34, c. 1533, entitled "An act concerning forcible entry and detainer," passed April 21, 1908, section 9 of which reads as follows: "Sec. 9. Such proceeding may be removed by certiorari into the Supreme Court, and be, there quashed for irregularity, if any such there be." Upon inspection of such proceedings so removed it appears that the verdict was signed by the foreman of the jury impaneled and sworn therein, and by none of the other jurymen. Portions of sections 5 and 6 of said act, material to this inquiry, read as follows: "Sec. 5. If, upon a full hearing of the cause, the jury shall find the complaint laid before them supported by the evidence, they shall sign and return to the court their verdict. * ly irregular. See Cone v. Cotton, 2 Blackf. (Ind.) 82; Ward v. Crane, 3 Blackf. (Ind.) 393. Furthermore, it nowhere appears that the Olney Street Baptist Church, the corporation which appears to make the complaint in the original proceeding, ever authorized the complaint to be made, and the persons who did sign the complaint are not shown to have had any authority to institute that proceeding. The proceedings are therefore quashed for such irregularities. AGES. SACCOCCIO et ux. v. SPRAGUE et al. (Supreme Court of Rhode Island. March 12, 1909.) COVENANTS (§. 132*)-TITLE-BREACH - DAMA purchaser of land, suing for breach of a covenant as to title, can recover the costs and expenses of suits through which he determined the nature and extent of the incumbrance, a right of way, especially where the vendors refused, after notice, to settle the matter, so as to save expense to the purchaser. [Ed. Note.-For other cases, see Covenants, Cent. Dig. § 260; Dec. Dig. § 132.*] Exceptions from Superior Court, Providence and Bristol Counties; George T. Brown, Judge. Action by Michele Saccoccio and wife against William Sprague and others. From a verdict for plaintiffs, defendants bring exceptions. Exceptions overruled, and cause remitted, with direction to enter judgment on the verdict. Plaintiff sues for breach of covenant in a warranty deed, arising from the existence of a right of way not mentioned in the deed. James J. McGovern, for plaintiffs. Louis L. Angell, for defendants. PER CURIAM. A careful consideration of the transcript of evidence convinces us that the verdict is supported by the evidence and that the court committed no error in rulings or charge. We cannot agree with the counsel for the defendants in his contention that the court erred in allowing the plaintiffs to recover for the costs and expenses of one of the lawsuits and of the equity suit through which the plaintiffs finally ascertained and determined what was the exact nature and extent of the incumbrance (right of way) upon the property sold to the plaintiffs by the defendants. We know of no better way in which the exact legal status of the real estate could have been ascertained, particularly in view of the refusal of the defendants, after notice, to take any steps to make a settlement of the matters in dispute, so as *For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes |