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RODEBAUGH v. TRACTION COMPANY.

Section 1 of the Act of June 24, 1895, does not bestow a new right of action, it merely sustains the plaintiff's right after the death of the defendant, and the words of the act are general and there is nothing to indicate that they were not intended to establish a general rule, applicable to all cases within their terms, to wit, "Every suit to recover damages for injury wrongfully done to the person."

The second section of the act merely limits the time within which such actions must be brought. Neither the subject nor the title of the act can itself constitutionally be attacked. It has but one subject, creates no new right, but provides for the regulation of a class of rights which existed before, and the title is, grammatically as well as to the general intent, neither inadequate nor misleading.

A plaintiff in an action brought two years after the passage of the act for injuries received before the act was passed cannot complain of interference by the act with his vested right. If the right of action had been cut off by the retroactive feature of the statute without a reasonable period for his enforcement, so that under the form of regulation there was really a deprivation of the right, a different question would be presented.

Appeal of Levi Rodebaugh from the judgment of the Court of Common Pleas No. 1, of Philadelphia county, in an action of trespass wherein the Philadephia Traction Company was defendant.

for those criminal acts. In order to avoid the consequences of these criminal acts a large amount of money was raised by friends of the cashier, and by realizing sales of certain coal options which he held and turned over to two trustees to act for him. It was claimed by the defendants that the total of the sum raised and paid over to the assignee was about $144,000, and it was claimed by the plaintiff that the total shortage account of the cashier was $168,000. A great deal of testimony was taken in the development of the various contentions of the parties upon these subjects, and especially upon the point whether the moneys paid by those persons who had signed the cashier's bond as sureties, were really paid in discharge of their obligations as bondsmen. The allegation that the total shortage of the cashier was $168,000 is denied absolutely by the defendants and it was fully testified on the trial that it was never claimed to be more than $145,000 at the outside and that when inquiry was made of the assignee as to what was the total amount he replied that it was $136,000. It was also testified that the money that was raised and paid by the defendants was raised for the purpose of paying off and discharging the entire indebtedness of George A. Jessup to the bank. While it does not appear that there was any specific appro- On the trial of this cause, before BIDDLE, P. priation of any particular payments made by J., the plaintiff showed the following case: the bondsmen, it did appear very clearly that The plaintiff, a driver of a "jigger" car on the the payments they did make were largely in Ellsworth and Christian streets branch of deexcess of the whole penalty of the bond and fendant's lines in Philadelphia, was injured by the payments being actually applied to the ex-being pulled over the dasher of the car on the tinguishments of George A. Jessup's indebted-evening of January 12, 1895, by the stumbling ness to the bank, we think the learned court below was entirely right in submitting the question whether the bond had been paid or not to the jury for their decision. It is not necessary to review the testimony in detail nor to dwell upon its various aspects. It certainly did raise the question of actual payment of the whole amount which could in any event be claimed under the bond, and the jury has decided that question in favor of the defendants.juries to be brought within two years. This verdict was satisfactory to the learned judge who tried the case, and it is satisfactory to us. The case was twice tried and the first verdict being against the defendants was set aside by Judge MCPHERSON, who presided at the trial because he regarded it as against the weight of the evidence. After a careful examination of the testimony we are of opinion that the verdict on the last trial was just and proper. We do not think that there is any error on the part of the court in the matters covered by the several assignments and they are therefore dismissed. Judgment affirmed.

of the horses on a loosened or worn plank at the crossing of Seventh street and Washington

avenue.

This action was brought on February 16, 1898. The plaintiff having rested, the court, BIDDLE, P. J., entered a nonsuit on the ground that the action came within the provisions of the second section of the Act of June 24, 1895, P. L. 236, requiring all actions for personal in

A rule to take off the nonsuit was discharged.
The plaintiff took this appeal, assigning as
error the refusal to take off the nonsuit.
For appellant, D. Webster Dougherty.
Contra, Thomas Leaming.

Opinion by MITCHELL, J. Filed March 20, 1899.

The plaintiff declared for injury received from negligence of defendant on January 12, 1895, but did not bring suit until February 16, 1898. The court below nonsuited him as barred by the Act of June 24, 1895, P. L. 236. This appeal

raises two questions, first, the construction of words are "any right of action which may the act, second, its constitutionality.

hereafter come into being by reason of injury wrongfully done to the person of another." No declaration or definition of any new right is made, for the subject of the section is the previously existing right of action for wrongful injury to the person. And the enactment in regard to the subject is that such rights shall not hereafter be lost by the death of the wrongdoer. By the common law the right of action and the action itself if pending terminated with the death of either party. This act made a change in favor of the plaintiff or party injured, analogous to an extension of the period of limitation. Under the previous law there were two bars to his action, the expiration of the statutory period of limitation, or the death of the wrongdoer whichever occurred first. This section relieves the plaintiff from the latter bar to the enforcement of his previous right. It has no other effect. The second section provides a new period of limitation. The words are “every suit hereafter brought to recover damages, for injury wrongfully done to the person, in case where the injury does not result in death, must be brought within two years from the time when the injury was done, and not afterward." The words are general, their meaning is plain, and there is nothing in them or in their context to require a different construction. The meaning of an act is to be gathered primarily from its language, and where that is clear there is no occasion to go beyond it. The rule actio personalis moritur cum persona was changed by the Act of April 15, 1851, P. L. 674, as to the death of the party injured and by the Act of April 26, 1855, P. L. 309, the parties who may bring suit in such case are defined, and the time within which it may be bronght limited. The Act of 1895 did away with what was left of the common law rule, in actions for personal injuries by providing that the action should not abate, or the right be lost by the death of the wrongdoer, but by way of equalizing this advantage to the plaintiff, required all such actions to be brought within two years from the injury, unless death resulted in which case the limitation was left as under the Act of 1855, to one year from the death. The result of the legislation is that before the Act of 1895 the party injured could bring his suit at any time within six years from the injury, but if he died before suit began his relatives must sue within one year from his death, and in either case his action or the right of his relatives to sue would terminate immediately on the death of the Turning to the Act of 1895, it is an error to say wrongdoer. Since the Act of 1895 the death of that the first section gave any new right. The the wrongdoer does not terminate the action or

First, it is argued that the act does not apply to the present case. Section first enacts "that any right of action which may hereafter come into being by reason of injury wrongfully done to the person of another shall survive the death | of the wrongdoer, and may be enforced," etc., and second section that "Every suit hereafter brought to recover damages for injury wrongfully done to the person, in case where the injury does not result in death, must be brought within two years from the time when the injury was done and not afterward; in cases where the injury does not result in death the limitation of action shall remain as now established by law." It is argued that the act creates a new right, to wit, of action against wrongdoers who die either before or pending suit, and that the limitation in the second section applies only to such actions as are given by the first and not to those like the present which are under the common law, between parties living. It is further said that as there is no clause repealing the prior statute of limitation, the several acts must be so construed as to stand together, citing the authorities on the construction of statutes. There is no dispute about this principle. It is not, however, a mandatory rule, but a principle of construction in aid of discovery of the legislative intent. The Legislature expresses its will in any form, affirmative or negative, that it pleases, so long as it does not transgress constitutional prohibitions. It is under no obligation in changing the law to use words of express repeal of any previous statute. It is frequently convenient that it should do so to aid the courts in reaching its true intention, but it is never obligatory. Nor is there any duty on the courts to so construe a new statute that it shall not affect a prior one on the same subject. It is always a question of the legislative intent. The presumption of course is that the statute expresses the full intent, and when therefore it is sought to extend the provisions beyond what their words express, the extension must appear by strong if not by necessary implication to be within the actual intent. It is in aid of the discovery of such intent that the principle is applied, that a merely affirmative statute shall not be held to repeal a previous one, if by fair and reasonable construction, both can stand consistently together. Where, however, the intent of the latter act is clear no repugnancy to a prior one will authorize a construction against such intent.

the right thereof, but the latter right must be availed of within two years of the injury. As already said the words af the Act of 1895 are general, and there is nothing to indicate that they were not intended to establish a general | rule, applicable to all cases within their terms, to wit, "every suit to recover damages for injury wrongfully done to the person."

period for its enforcement so that under the form of regulation there was really a deprivation of the right as would have been the case in Byers v. Penn'a R. R. Co., 18 Co. Ct. 187, cited by appellant, a different question would have been presented. But in this case the suit was not brought for more than the full period of two years after the passage of the act.

Judgment affirmed.

COMPANY.

Under the second section of the Act of June 24, 1895, a suit brought February 4, 1898, for injuries inflicted May 17, 1892, is too late.

Secondly, the constitutionality of the the act is attacked on two grounds, first, that it has two subjects, the creation of a new right of action, PETERSON v. DELAWARE RIVER FERRY and the limitation of actions on other rights than the one thus created, and secondly, that the second section if construed as making a general limitation, is not clearly expressed in the title. The first ground has already been substantially discussed in considering the proper construction of the language. The act has but one subject, actions for injuries wrongfully done to the person. It creates no new right but provides for the regulation of a class of rights which existed before. Both sections are germane to that subject and operate in the nature of a statute of limitations, enlarging the period in which the action may be brought or maintained in one respect, and limiting it in another.

A saving from the operation of a statute for disability must be expressed or it does not exist, hence, as the act is general in its term an infant is bound by the provisions of the statute.

The fact that suit was brought, but not prosecuted, for the same cause of action against another party within the time prescribed by the statute, cannot avail.

Appeal of Annie C. Peterson, by her next friend and father, Andrew Peterson, from the judgment of the Court of Common Pleas No. 1, of Philadelphia county, in an action of trespass wherein the Delaware River Ferry Company was defendant.

On the trial, before BIDDLE, P. J., the plaintiff presented the following case: The plaintiff was on May 17, 1892, twelve years of age. On that day she received an injury by an effort on the part of the employees of the Delaware River Ferry Company to hold her on a ferry boat after the same had been detached from and was leaving the slip. She fell upon the deck and fractured her ankle. It appeared that within two years after the accident an action had been brought on her behalf against the Atlantic Railroad Company, which action was not proceeded with.

Nor is the title open to the objection made. It is "An Act providing that the right of action for injury wrongfully done to the person shall survive against the personal representative of the wrongdoer and limiting the time within which suit for such injury must be brought." | The subject of the first member of this sentence, as already said, is the right of action for injury wrongfully done to the person. That is the whole of the subject, and the enactment with regard to it is that it shall survive the death of the wrongdoer. The "suit for such injury" of which the second member of the sentence indicates the limitation, necessarily means the same thing, suit for injury wrongfully done to the On the authority of the second section of the person. Grammatically as well as to the gen- Act of June 24, 1895, the court entered a noneral intent it must refer to the subject to be leg-suit and discharged a rule to take the same off. islated upon and not to the enactment intended The plaintiff took this appeal.

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For appeallant, J. A. Culbert, G. A. Drovin and J. B. Rutherford.

Contra, Thomas Hart, Jr., aud Gavin W.

Hart.

Opinion by MITCHELL, J. Filed March 20, 1899.

It is further urged that the act is unconstitutional at least as applied to the present action becuuse it interferes with a vested right which plaintiff had immediately upon the injury, and before the passage of the act. But this act, in The plaintiff brought suit February 4, 1898, regard to the present suit is clearly a regulation for injuries from the alleged negligence of deof the remedy which is firmly settled to be fendant's employees on May 17, 1892, and was within the power of the Legislature. If the nonsuited on the ground that her action was right of action had been cut off by the retroac- | too late. The case raises the same questions as tive feature of the statute, without a reasonable to the construction and constitutionality of the

Act of June 24, 1895, P. L. 236, as those which have been discussed and decided in Rodebaugh v. Phila. Traction Co., opinion filed herewith. It is not necessary to do more than refer to that opinion [page 24].

The only additional points in the present case are that the plaintiff was at the time of the injury and still is a minor, and that a suit was brought in her behalf, within the statutory period against the Atlantic Railroad Company, which is alleged to be operating "to a certain extent" the boats of the present defendant.

Court of Common Pleas No. 2,

ALLEGHENY COUNTY.

WOLF v. ALTMEYER et al.

An architect was employed to draw plans and make estimates of cost of remodeling a building, changing it from a theatre into a brewery, and to superintend such change for a specified commission. After having completed part of the work the building burned. Held, that the architect was entitled to receive a reasonable compensation for the work done by him before the building was burned, and that the contractor was not relieved by this destruction.

No. 188 April T., 1898. Reserved question. Opinion by WHITE, P, J. Filed June 17, 1899.

The defendants, contemplating the conversion of a theatre building into a brewery, employed the plaintiff, an architect, to prepare preliminary plans for that purpose, and an estimate of the cost. If they concluded to go on, after receiving the preliminary plans and esti

necessary for the completion of the work, and to superintend the work, for which he was to receive as compensation five per centum on the cost, which was estimated to be from $80,000 to $100,000. He was paid $500 after preparing the preliminary plans and estimate, which was to be credited on account if they concluded to go on with the enterprise.

The Act of 1895 as held in the case referred to, is a general act in the nature of a statute of limitations. Its terms are general, and make | no exceptions in favor of persons under disability. The settled rule is that infants as well as all others are bound by the provision of such statutes. "A saving from the operation of statutes for disabilities must be expressed or it does not exist:" Warfield v. Fox, 53 Pa. 382. | "There is no limitation in the act which ex-mate, he was to prepare all plans and drawings cludes persons under disabilities. Any person' means every person. If persons who are minors should be excluded by reason of their disability to make contracts they would be deprived of the benefit of the act, and that would be a hardship to which they ought not to be subject without express words of exclusion:" Williams v. Ivory, 173 Pa. 536. It was accordingly held in this latter case that as the Act of 1842 made no distinction of persons in providing for discharge from arrest for fraudulent indebtedness, on making a general assignment for the benefit of creditors, therefore a deed of assignment for such purpose was valid notwithstanding the general disability of the grantor by reason of infancy. It would be difficult to find a stronger illustration of the force of gen-action is to recover compensation to the plaineral statutes with regard to persons under disability.

The second point has no basis. A prior suit against another party cannot help this one. If the right party was there sued the issue should be fought out there, and if the wrong party was sued there the right one cannot be brought in by amendment, still less can he be sued by a new writ and deprived of the benefit of the statutes of limitations by making it relate back to a former writ to which he was not a party. The present suit must stand or fall on its own merits, and not only was there no evidence of the identity of the defendant and the Atlantic Railroad Company as to liability to the plaintiff, but such evidence, even if it had been given, would have been of no avail.

Judgment affirmed.

After receiving the preliminary plans and estimate, they concluded to go on, and directed the plaintiff to prepare the full plans and specifications, which he did. A preliminary contract was made for remodeling the theatre. The third day after the contractor began work the theatre was totally destroyed by fire and the defendant abandoned the enterprise. This

tiff for his labor and expenses in preparing plans and specifications after he was directed to go on and before the fire occurred.

The contention of the defendants is, that as the fire made it impossible to go on with the improvement and impossible for the plaintiff to perform his contract in full without any default on part of defendants, the plaintiff can sustain no action.

This is not an action to enforce the peformance of a contract which by an accident has been rendered impossible, as in the English case of Taylor v. Caldwell, 3 B. & S. 826, and the cases which have followed that lead. The statement was filed on that theory, but amended at the trial to claim on a quantum meruit for the work done before the fire.

The plaintiff had no contract to erect the

seem to have been before our Supreme Court. But similar cases have been before the courts of other States and decided adversely to the contention of the defendants in this case. In New

building or to do any part of the work on it. His contract was to prepare the plans and specifications and superintend the work in the construction. He prepared the plans and specifications, and did all he was required to do under | York-Niblo v. Binsse, 1 Keyes. 476, and Wolfe the contract to the time of the fire. He was ready to go on and perform fully his contract when the fire occurred and the defendants abandoned the enterprise. He was in nowise responsible for the fire or the failure to go on with the work. He now claims simply a reasonable compensation for the work he performed prior to the fire.

His contract is entirely different from that of a contractor who had undertaken to erect and complete the building for a definite sum. Had it been a new building, the fire would not relieve the contractor from his contract. As it was the changing and remodeling of an existing building, the fire made the completion of the contract impossible, and in that case, according to the old English and some Amercian cases, neither party would have an action against the other. But that doctrine has not been applied to those who had not the general contract, but did some work or furnished some materials in the building. They are entitled to be paid by the employer, the contractor or the owner.

In the case of Taylor v. Caldwell, the plaintiff had rented a hall for giving entertainments on certain days. The hall was destroyed by fire. The plaintiff sought to hold the defendant to the contract. The court held that, as the contract was in reference to a certain thing— that is, the hall-when it ceased to exist without fault in either party, the contract was abrogated.

v. Howes, 20 N. Y. 197; Massachusetts-Cleary v. Sohier, 120 Mass. 210, and Butterfield v. Byron, 153 Id. 517; Illinois-Schwartz v. Saunders, 46 Ill. 18, and Rawson v. Clark, 70 Id. 656; Wisconsin-Cooke v. McCabe, 53 Wis. 250; Tennessee Wilson v. Knott, 3 Humphreys, 473. The question of law reserved is decided in favor of the plaintiff, and it is ordered that, on payment of the verdict fee, judgment be entered for the plaintiff against defendant for the amount of the verdict.

To which opinion and order defendants except and bill sealed.

The amount of the verdict is very reasonable on the evidence if plaintiff is entitled to recover. The motion for new trial is therefore refused. For plaintiff, Charles A. Fagan and Thomas Herriott.

For defeudants, Dalzell, Scott & Gordon and George P. Murray.

Court of Quarter Sessions,

DAUPHIN COUNTY.

COMMONWEALTH v. JOYCE et al.

In Pennsylvania it is illegal to sell spirituous or fermented liquors in any army "canteen 99 or other place, without a regular court license.

No. 253 June Sess., 1899. Selling liquor without a license.

The undisputed facts were that a sergeant and The two Pennsylvania cases referred to do not two civilians (one a recently discharged soldier) fit this case. In Lovering v. Coal Co., 54 Pa. were operating the canteen system-i. e., selling 291, the railroad company had contracted to de- beer and wine to soldiers and civilians, at Camp liver coal at certain times and prices. It was Meade, under the authority of the officer in well known that the railroad connected with a command of said camp; who claimed that the navigation company, and only by that conneccanteen was instituted by him under the regution could deliver the coal. A great flood pre- lations of the United States War Department. vented for a while the delivery of the coal That The sergeant was detailed to see that the reguexcused the railroad company from a strict per-lations were complied with, but took part in the formance of the contract. In Scully v. Kirkpat-sale of liquor. rick, 79 Pa. 324, Scully was surety for Gumberts to appear at a certain date to answer on a bench warrant for a fraudulent debt. He was prevented from appearing on that day by reason of sickness, and his bond was forfeited. Suit was brought against Scully. Gumberts appeared before the judge as soon as he was able and ready to answer. It was held that sickness was a good excuse for not appearing on the day, and that would relieve the surety.

For the Commonwealth, Stranahan.
For defendants, Bergner & Wolfe.

SIMONTON, P. J., June 17, 1899, in charging the jury, called attention to the Act of Congress of June 13, 1890, supplement to Revised Statutes, Vol. I, page 757, which provides, "That no alcoholic liquors, beer or wine shall be sold or supplied to the enlisted men in any canteen, or post trader's store, or in any room or building at any

The precise question in this case does not garrison or military post, in any State or Terri

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