Bazil v. Keystone Fur Company.

founded. We, however, hold that it is not properly pleaded, and for this reason and because of other defects pointed out in the affidavit of defence, Now, May 10, 1923, the exceptions to the affidavit of defence are sustained and the defendants are given fifteen days in which to file a new affidavit of defence. From William A. Wilcox, Scranton, Pa.

Lobb v. Stitzinger.

Practice, C. P.-Trespass-Leave to file affidavit-Practice Act of May 14,

1915.

Under the Practice Act of May 14, 1915, P. L. 483, in actions of trespass, a defendant may, with leave of court, file an affidavit of defence at any time before trial; but such leave should not be granted in a case where a plaintiff establishes, by depositions or otherwise, that he has been prejudiced by defendant's implied admission of the ownership of the instrument by which the injury was caused or the agency of the person causing the injury. Where, however, plaintiff fails to aver in his answer to the petition for leave that he has sustained prejudice by reason of defendant's delay, or to offer evidence to establish such prejudice, leave will be granted.

Rule to show cause why defendant should not have leave to file an affidavit of defence. C. P. No. 2, Phila. Co., March T., 1923, No. 4640.

Chapman & Chapman, for rule; J. Edgar Butler, contra.

LEWIS, J., May 13, 1924.—A summons in trespass was issued herein, returnable to the fourth Monday of April, 1923, and a statement of claim and notice to file an affidavit of defence were filed on April 14, 1923, copies being duly served upon the defendant, for whom counsel had entered an appearance on April 9, 1923. It is admitted that on April 16, 1923, defendant's counsel wrote to counsel for plaintiff that, within the fifteen days allowed by rule, he would advise his opponent whether he would file an affidavit of defence, and that on April 28, 1923, defendant's counsel wrote his opponent as follows:

"Please be advised that as I shall not contest either the ownership by the defendant of the automobile involved in the above suit or the authority of the person driving it, I shall not file an Affidavit of Defence, as all the other matters in your Statement are put in issue by the Practice Act."

On April 10, 1924, defendant petitioned for rule to show cause why he should not have leave to file an affidavit of defence, this affidavit admitting the ownership by defendant of the automobile, but denying that it was being operated or controlled on his business or undertaking or by his agent, servant or employee, and averring that it was being operated by defendant's minor daughter upon her own business and pleasure. The affidavit also denied negligence and made a counter-averment of negligent operation by the plaintiff of his own car.

We are of opinion that in actions of trespass a defendant can, with leave of court, file an affidavit of defence at any time prior to trial, but that such leave should not be granted in a case where plaintiff establishes, by depositions or otherwise, that he has been prejudiced by defendant's implied admission of ownership and agency of the instrument by which the injury was caused. For instance, should plaintiff establish, by depositions or other evidence, that he has lost the opportunity to obtain witnesses who might otherwise have been available for attendance in court to establish the defendant's ownership of the instrument and the fact of its control or operation by defendant's agent. Here, a period of one year has elapsed, during all of

Lobb v. Stitzinger.

which time the plaintiff has been entitled to rely upon the record as constituting an admission by defendant of all the averments in the statement of claim relating to ownership and agency, and it might very well have been the fact that in this time witnesses necessary to prove plaintiff's allegations had died, removed from the country or disappeared. However, the plaintiff has not averred in his answer to the petition, nor has he offered evidence to establish, any prejudice to his cause consequent upon defendant's delay, and, in the absence of evidence of damage, it is our view that defendant should have the leave prayed for.

The rule to show cause is, therefore, made absolute.

Gross v. Dickinson.

Practice, C. P.-Trespass-Affidavit not to be filed after fifteen days from service of statement-Practice Act of May 14, 1915.

1. Under the Practice Act of May 14, 1915, P. L. 483, after the lapse of fifteen days from the service of the statement of claim, no affidavit of defence can be filed without leave of court first obtained for cause shown.

2. It is immaterial that plaintiff has not filed of record proof of service of the statement; there is nothing in the Practice Act requiring plaintiff to file such proof.

Rule to show cause why affidavit of defence should not be stricken from the record. C. P. No. 2, Phila. Co., Sept. T., 1923, No. 5995.

Maurice G. Weinberg, for plaintiff; Layton M. Schoch, for defendant.

LEWIS, J., May 13, 1924.-Suit was brought herein by summons in trespass, returnable to the first Monday of November, 1923. A statement of claim was filed on Nov. 10, 1923, in which damages were claimed for personal injuries sustained through alleged negligence in the operation of an automobile owned by defendant and averred to have been driven by an agent, servant or employee of such defendant. A copy of this statement, with notice to file an affidavit of defence, was duly served on defendant's attorney. No affidavit of defence was filed and the case was ordered on the trial list, appearing on the daily printed calendar for trial on March 19, 1924. One day prior to the day fixed for trial, or on March 18, 1924, defendant's substituted counsel, without leave of court, filed an affidavit of defence denying the agency in the operation of the car. The case being continued, on plaintiff's plea of surprise, a rule was taken to strike off the affidavit of defence. Defendant resists this rule by asserting a right in him to file an affidavit of defence, without leave of court, at any time before his default is evidenced of record by the plaintiff filing an affidavit of service of the copy of the statement of claim and notice to file an affidavit of defence. Defendant relies upon the recent case of Fuel City Manuf. Co. v. Waynesburg Products Corporation, 268 Pa. 441, an action of assumpsit, wherein the Supreme Court construes section 12 of the Practice Act of 1915 to mean that a defendant is not prohibited from filing an affidavit of defence after the fifteen-day time limit, where judgment has not been entered against him for default. We do not regard this decision as applicable to practice in trespass actions, for the consequence of a defendant's failure to file an affidavit of defence to the statement in trespass is fixed by law and is effective without affirmative action by plaintiff. In assumpsit actions there is no penalty unless and until plaintiff acts to have a judgment entered for default, but in trespass the failure to file an affidavit within fifteen days after service of a copy of the statement and usual notice operates as an admission

Gross v. Dickinson.

of certain facts that might otherwise have been put at issue. These facts thereupon are excluded from the issues to be tried. We are of opinion that, after the lapse of the fifteen days, no affidavit of defence can be filed by defendant without leave of court first obtained for cause shown, regardless of whether plaintiff has filed of record proof of the service. There is nothing in the Practice Act requiring plaintiff to file such proof.

Therefore, the rule to strike from the record the affidavit of defence filed on March 18, 1924, is made absolute.

Pierkowski v. Nicholson.

Fictitious trading name-Non-registration-Affidavit of defence-Acts of June 28, 1917, and May 10, 1921.

1. Under the Act of May 10, 1921, P. L. 465, amending the Fictitious Names Act of June 28, 1917, P. L. 645, the failure of any person to register the name adopted does not impair the validity of a contract with such person.

2. In an action brought after the passage of the Act of May 10, 1921, where the plaintiff avers non-registration of defendant under the Act of 1917, an affidavit of defence which presents a good defence on the merits, and, without either admitting or denying such averment, denies its materiality, is sufficient.

Reargument of rule to show cause why judgment should not be entered for want of sufficient affidavit of defence. C. P. Luzerne Co., May T., 1923, No. 232.

Q. A. Gates and W. A. Valentine, for rule; J. R. Hessel, contra.

FULLER, P. J., Aug. 27, 1923.-Upon this reargument and further consideration of the nice point involved, we conclude that, in view of the Act of May 10, 1921, P. L. 465, amending the Fictitious Names Act of June 28, 1917, P. L. 645, judgment should not have been entered in this case for want of a sufficient affidavit of defence.

The affidavit is concededly sufficient except on the single point of neither admitting nor denying the plaintiff's averment of non-registration under the said Act of 1917, defendant merely denying materiality.

Such form of denial, of course, under the Practice Act of 1915, admits the fact of non-registration, which, prior to the said Act of 1921, would have stamped the contract with illegality, and would have sustained recovery by the plaintiff of the amount paid thereon, as we held in our former decision.

Said Act of 1921, however, expressly provides that the failure of any person to register "shall not impair nor affect the validity of any contract with such person or persons."

This certainly saves the contract, with the condition, later expressed in the act, that before the non-registering person can enforce the contract, he must comply with the said act and pay a license fee.

In the present case the non-registering person is not a plaintiff seeking to enforce the contract, but a defendant resisting recovery of money paid to him on a valid contract, and we think that he should be allowed to show by way of defence on the merits his right to retain the same.

We may refer to Lamb v. Condon, 276 Pa. 544; Sperry Co. v. Day, 3 D. & C. 13.

Hence, we revise our former decision, and, upon payment by defendant of costs already incurred by plaintiff, we will strike off the judgment, leaving ultimate liability for the costs to abide the final decision.

From F. P. Slattery, Wilkes-Barre, Pa.

Hullman v. Kauffman.

Divorce―Annulment of bigamous marriage-Procedure-Act of April 14,

1859.

1. A bigamous marriage must be annulled of record in due form of law before the parties thereto are free to separate and assume new marital obligations.

2. The Court of Common Pleas cannot annul a bigamous marriage upon motion showing that one of the parties has been convicted and sentenced in the Court of Quarter Sessions for bigamy.

3. The proceedings for the annulment of a bigamous marriage should be begun by petition or libel, and the petitioner must prove not only the guilt of the respondent, but that the petitioner was an innocent party to the bigamous marriage.

4. In such a case, the evidence can be taken in open court, or before a master, or by depositions, as the court may direct, with due notice to the respondent, as in divorce cases, so that he may appear and contest the case if he sees fit.

5. Where the wife is the petitioner, she should use her married name and not her maiden name in proceedings to annul her marriage contract.

Act of April 14, 1859, P. L. 647, considered.

Motion to annul a marriage. C. P. York Co.

W. W. Van Baman, for motion.

WANNER, P. J., Oct. 8, 1923.-Marian Kauffman, the second wife of Paul Kauffman, who was recently convicted and sentenced for bigamy, filed a motion in this court in her maiden name of Marian Hullman, for the annulment of the bigamous marriage contract existing between said parties because of said conviction and sentence, without the usual proceedings incident to the procurement of divorces. It is true that the statutes defining and punishing the offence of bigamy also declare the bigamous contract to be null and void: Vide Act of Jan. 12, 1705, 1 Sm. Laws, 29; Act of Sept. 19, 1785, 2 Sm. Laws, 343-345, and also section 34 of the Act of March 31, 1860, P. L. 392.

Prior to the passage of the Criminal Code of 1860, however, the Act of April 14, 1859, P. L. 647 (relating to void marriages), prescribed the procedure by which such marriages might be annulled in the Court of Common Pleas as follows: "In all cases where a supposed or alleged marriage shall have been contracted, which is absolutely void by reason of one of the parties thereto having a husband or wife living at the time, the Courts of Common Pleas shall have power to decree the said proposed or alleged marriage to be null and void, upon the application of an innocent or injured party, and the jurisdiction shall be exercised and proceedings conducted according to the principles and forms which are or shall be prescribed by law for cases of divorce from the bond of matrimony."

Under the provisions of this act, the proceedings for the annulment of a bigamous marriage contract should be begun by petition or libel, and the petitioner would be obliged to prove not only the guilt of the respondent, but that she was an innocent party to the bigamous contract: Thompson v. Thompson, 10 Phila. 131; Klaas v. Klaas, 14 Pa. Superior Ct. 550; Com. v. White, 22 Pa. Superior Ct. 67-69.

The evidence in the case can be taken in open court or before a master or by depositions, as the court may direct, with due notice to the respondent of the several proceedings as in divorce cases, so that he may appear and contest the case if he sees fit. The petitioner should use her married and not her maiden name in proceedings to annul her marriage contract: Howard v. Lewis, 6 Phila. 5.

The passage of the Act of April 14, 1859, clearly indicates that it was not the intention of the legislature that the mere declaration of the statutes that

Hullman v. Kauffman.

the bigamous marriage contract was null and void should be sufficient to cancel the marital obligations of the parties, and it has accordingly been held by the courts that the marriage contract must be annulled of record in due form of law before the parties thereto are free to separate and to assume new marital obligations: Griffith v. Smith, 1 Clark, 479; Wilhelmi v. Wilhelmi, 26 Pa. C. C. Reps. 312; Heinzman v. Heinzman, 15 Pa. C. C. Reps. 669; Ralston v Ralston, 13 Pa. C. C. Reps. 507; Thompson v. Thompson, 10 Phila. 131-133; Newlin's Estate, 231 Pa. 312.

Several lower court cases have been cited in which the bigamous marriage contract was declared to be void by the Court of Quarter Sessions as part of the sentence imposed for bigamy. But there is no specific authority for so doing in the statutes relating to the punishment of bigamy, nor do they confer upon the criminal courts any jurisdiction to grant divorces or to annul marriage contracts.

The passage of the Act of 1859, above cited, seems to be conclusive on this subject, and it has been so accepted and followed by the courts in cases above cited.

This proceeding by motion only is, therefore, irregular and not in accordance with the provisions of the Act of April 14, 1859, and it should be brought in the married and not in the maiden name of the petitioner.

For the reasons above assigned, the motion is refused and overruled.

NOTE. This case will be found of record C. P. York Co., No. 85, Aug. T., 1923, under the name of Foley v. Foley.

From Richard E. Cochran, York, Pa.

Commonwealth v. Mamula.

Criminal law-Involuntary manslaughter-Negligence in driving motortruck-Ordinary care.

1. Involuntary manslaughter arises where it plainly appears that neither death nor any great bodily harm was intended, but death is accidentally caused by some unlawful act, or any act lawful in itself, but done in an unlawful manner without due caution or circumspection.

2. Failure to use ordinary or reasonable care under the given circumstances is sufficient to constitute the crime of involuntary manslaughter where the negligent act results in the death of another.

3. Under the common law and the law of Pennsylvania, no particular degree of negligence is necessary to make out the crime of involuntary manslaughter where death ensues as the result thereof. Simple negligence is sufficient to sustain a conviction.

4. Malice is not an ingredient of the crime of involuntary manslaughter; its presence raises the degree of the crime above that of involuntary manslaughter.

5. If the driver of an automobile does not exercise ordinary care, and, as a result of his negligence, he kills another, he may be convicted of involuntary manslaughter.

Indictment for involuntary manslaughter. O. and T. Beaver Co., June Sess., 1923, No. 3.

Louis E. Graham, District Attorney, and J. Blaine McGoun, Assistant District Attorney, for Commonwealth.

L. M. Sebring, for defendant.

READER, J., Sept. 15, 1923.-The defendant in this case was tried upon an indictment charging him with the crime of involuntary manslaughter. He was accused of having caused the death of Mrs. Edith Muldowney by bringing his auto-truck into collision with a horse and carriage in which she was