(111 A.) bile under control," but by the defendant's far as the record shows. Such a driver fifth the jury was instructed: "That if they shall find from the evidence that at the time of the accident mentioned in the testimony the deceased, Maria Hall, was a passenger in the automobile mentioned in the evidence, then it was the duty of the driver of the automobile to exercise the highest degree of care and skill practicable under all the circumstances for her care and safety, and if the jury shall further find that the driver of the automobile failed to use such care, and that his failure to do so was the direct and proximate cause of the accident, without which the accident would not have occurred, if the jury so find, then the verdict of the jury should be for the defendant." That prayer is precisely like defendant's D prayer in Crain's Case, which we said should have been granted as offered. The plaintiff's prayer concluded by an instruction that, if they found the facts therein stated, the verdict of the jury should be for the plaintiff, yet it utterly ignored all questions of negligence of Kratzmeyer, excepting what we have quoted above as to the speed he was running and having the automobile under control, but the defendant's fifth prayer directed the verdict for the defendant if the jury found him negligent as therein stated. There was ample evidence tending to show negligence on his part, which was for the jury to determine. For instance, that of a passenger on the electric car tended to show that Kratzmeyer attempted to run around and in front of the car, and his own evidence furnishes some ground for such an inference. One of the plaintiff's witnesses testified that as he walked down Scott street towards Hamburg he had seen and heard the car three or four squares off, and two disinterested witnesses standing on the southwest corner of the streets testified that they saw the car coming at a moderate rate of speed, and that the automobile was running very rapidly. But the plaintiff's prayer did not submit such questions, either specifically or generally to the jury. There was therefore an irreconcilable conflict between those prayers, and under the authorities we cited above, to which may be added 2 Poe, § 300, it was reversible error to grant such conflicting prayers. [7] We deem it proper to add that, although we did approve a similar prayer in Crain's Case, and hence the lower court was justified in granting the fifth prayer, as it was a part of the law of the state, we think that the degree of care imposed on the driver by it is not justified by the facts of this case, and we must say was not in the Crain Case. Miss Hall was not a passenger for hire, but was simply a guest or occupant of the automobile by invitation of the owner. He was not a common carrier-certainly was not on the occasion of the accident-but, like most other people, he was the owner of the automobile for his own pleasure and purposes so should not be held to "the highest degree of care and skill practicable under all the circumstances" for the care and safety of his guest, and we are not aware of any authority in this state, or any outside of it which would be binding on us that so holds, except the Crain Case. In Huddy on Automobiles, § 113, P. 139, it is said: "In considering the rights of a guest we have a different situation presented, although he pays nothing for riding, he is, nevertheless, in the care and custody of the owner or driver of the machine, and is entitled to a reasonable degree of care for his safety." There are a great many cases cited in 2 Words and Phrases, Second Series, on pages 875, 876, as to the signification and meaning of the expression "highest degree of care," but it is not necessary to do more than refer to them. The degree of care of a driver for the safety of his guest must depend largely upon the circumstances of each particular case, but there is nothing in this record to justify the use of that expression. As defendant's D prayer, granted as modified in the Crain Case, included that statement as to the care required, as well as the one offered, which we held should have been granted, our attention was not fixed on that, but rather as to the effect of the modification. Hereafter when such a prayer is offered it should be so drawn as not to require such a high degree of care, when the injured party was a mere guest or occupant on the invitation of the driver or owner of the automobile, unless under some very peculiar circumstances. [8] Our understanding of what is meant by the concluding part of the prayer is that if the accident is caused wholly by the negligence of the driver, which was the direct and proximate cause of the accident, which would not have happened except for such negligence or failure of the driver to use proper and reasonable care, then the railway company is not responsible because the accident was not due to its negligence. It is not a question as to whether the negligence of the driver is to be imputed to the guest or occupant, but if the driver caused the accident there could be no reason why a third party should be held responsible for it. The case of Bagwell v. Southern R. Co., 167 N. C. 611, 83 S. E. 814, is an illustration of what we mean. That part of the prayer as to proximate cause might perhaps be improved on so as to show that the negligence of the driver was the sole, only, and proximate cause of the accident. The fifth prayer of defendant was not of much use with the plaintiff's first before the jury. [9-11] Then there was no reference made in any of the plaintiff's prayers as to whether Naomi Hall was a legitimate child of Maria Hall, or to the effect of it, if she was not. The only evidence on the subject of the mar In riage of Maria was that of her mother and of on the precise point in Maryland, but no doubt Jockell. She was asked, "When was your the same interpretation will be adopted." daughter married?" and replied, "I couldn't tell you that; I know she went off and told In Tucker v. State, Use of Johnson, 89 Md. me that she had got married." In another 479, 43 Atl. 778, 44 Atl. 1004, 46 L. R. A. 181, place she said she was away from home a we held that the statute "has created a new day and night, and told her that she had mar- cause of action for something for which the ried George Kelly. Jockell, one of the plain-deceased person never had, and never could tiff's witnesses, said she was unmarried. She have had, the right to sue; that is to say, and Kelly never lived together, and she went the injury resulting from his death." by the name of Miss Hall. Her declaration Stewart v. United Elec. L. & P. Co., 104 Md. that she was married was admissible under 332, 65 Atl. 49, 8 L. R. A. (N. S.) 384, 118 Craufurd v. Blackburn, 17 Md. 49, 77 Am. Am. St. Rep. 410, the question was whether Dec. 323, and Jackson v. Jackson, 80 Md. 176, an administrator or executor of a party could 30 Atl. 752, but as another witness of the sue to recover damages for injuries received plaintiff swore she was unmarried, which by the decedent through the wrongful act, statement was corroborated by the circum- neglect and default of the defendants. We stances referred to, it was for the jury to held that under section 103 (now 104) of artidetermine, and ought not to have been as- cle 93 and article 67 there were two separate sumed. Of course, that would only be rel- and distinct causes of action arising out of evant if an illegitimate child cannot recover the same wrongful act, that article 67 created under our statute for negligence causing a new cause of action, one which the decedeath. Article 67 of the Code. In the recent dent never had, and the damages in it are case of Fredericka Scott v. Independent Ice measured by the pecuniary value of his life Co. et al., 109 Atl. 117, decided at the October to his family, and are not part of the assets term, 1919, and not yet officially reported, we of his estate; that article 93, § 103 (104), determined that illegitimate children were provided for the survival of a cause of acnot entitled to compensation under our Work- tion which the deceased himself had; that men's Compensation Act for the death of the sum recovered is an asset of his estate, their father. We referred to all of our stat- and neither of those actions is a substitute utes on the subject of illegitimate children, for the other, and both may be maintained and pointed out the fact that some distinc- concurrently. It would seem, therefore, that tion was made by our statutes between the rights of such children in their fathers' estates from those in their mothers' estates. But in considering that case we said: "It could scarcely be contended that, under our statute for negligence causing death (article 67 of Code), an action could be maintained for the use of an illegitimate child, where it is said in section 2 that 'every such action shall be for the benefit of the wife, husband, parent and child of the person whose death shall have been so caused.'" even if an illegitimate child could get the benefit of damages recovered by an executor or administrator of its mother, that would not give it the right to sue under this statute. In Dronenburg v. Harris, 108 Md. 597, 71 Atl. 81, the court through Judge Thomas held that money collected in a suit in the District of Columbia by an administrator for the death of the deceased, and turned over to an administrator in this state, was to be distributed to the persons designated by the statute in effect in the District, and did not consti We also referred to 5 Am. & Eng. Enc. of tute assets of the estate of the decedent disLaw, 1095, where it is said that "It is a rule of construction that prima facie the word 'child' or 'children,' when used in a statute, will or deed, means legitimate child or children. In other words bastards are not within the term 'child' or 'children.'' See, also, 7 C. J. 959. tributable under the statute of distribution of this state. Under the statute of the District of Columbia the suit for the wrongful death of a party under what we usually speak of as Lord Campbell's Act, is brought in the name of the administrator. So without pursuing this subject further we are forced to the conclusion that an illegitimate child cannot sue under the provisions of article 67 of the Code, and hence Naomi Hall was not entitled to recover if she is such. It follows from what we have said that plaintiff's first and third prayers were improperly granted. The defendant's third prayer was properly rejected, as it was a question for the jury. We see no reason why the action of the court in rejecting the prayer 3% was not correct. We have not thought it necessary to discuss the plaintiff's second prayer, although it would be better "The word 'child' has been held in England to under such circumstances as exist in this mean legitimate child. There is no decision up-case to inform the jury that that did not en We also referred to McDonald v. P., C., C. & St. L. Ry. Co., 144 Ind. 459, 43 N. E. 447, reported in 32 L. R. A. 309, 55 Am. St. Rep. 185, where it was held that what corresponds with our statute gave no right of action to a father for the death of his illegitimate child. A number of authorities are cited in that opinion to the effect that when a statute gives the right of action to children, it means legitimate children only. In 1 Poe on Pl. & Pr. § 453, in speaking of this statute, it is said: (111 A.) title the passenger to recover if guilty of neg-guilty of very bad faith, and it was said of ligence directly contributing to the accident. him: Without discussing them, we find no reversible error in the other exceptions, but must reverse the judgment for the reasons stated. Judgment reversed, and new trial awarded, Amelia Hall, an equitable plaintiff and next friend of the infant, to pay the costs. DELONE v. FIRST NAT. BANK OF HAN OVER. (Supreme Court of Pennsylvania. June 26, 1920.) Assignments for benefit of creditors 259Pledge of assets by trustee held wrongful. "The evidence in the case reveals the plaintiff in the position of a trustee who has juggled, for his own benefit, the assets which he held as trustee for the benefit of the creditors of S. L. Johns." The decree, which followed supported findings, properly leaves the pledged property with the defendant, subject to the further order of the court below. Decree affirmed, at appellant's costs. VAPOR VACUUM HEATING CO. v. KALT- In suit to require defendant bank to restore to plaintiff property which he had pledged to it to secure the payment of a liability, decree following supported findings that plain-1. Sales 182 (4) In action for the purtiff, a trustee for creditors, had been guilty of bad faith for his own benefit, and had juggled assets of the trust, held to have properly left the pledged property with defendant bank, subject to further order of the court. Appeal from Court of Common Pleas, York County; N. Sargent Ross, Judge. chase price, where there was evidence of acceptance, direction of verdict for defendant improper. Where plaintiff installed an oil seal combustion control apparatus for defendant's boiler, and there was evidence of acceptance, the question of defendant's liability was properly submitted to the jury, for, if the apparatus ful Bill by C. J. Delone against the First Na-filled the conditions of the contract, plaintiff tional Bank of Hanover, Pa. From a de cree dismissing the bill, plaintiff appeals. Affirmed. The findings of fact made by the trial court, on which its decree was based, were that plaintiff, trustee for creditors of an other, pledged a certain mortgage and stock of the trust in his hands as trustee with the bank, when he had been guilty of bad faith and juggling of assets for his own benefit in the administration of his trust. Defendant bank had a claim against such assets of the trust. Argued before BROWN, C. J., and MOSCHZISKER, FRAZER, WALLING, and SIMPSON, JJ. V. K. Keesey, of York, for appellant. M. S. Niles, C. A. May, George E. Neff, and H. C. Niles, all of York, for appellee. PER CURIAM. The prayer of the plaintiff's bill was for a decree requiring the defendant to restore to him property which he had pledged to it to secure the payment of what it claimed was a liability by him. The decree was refused, not on the ground that such liability had been established, but for the reason that the pledged property did not belong to the plaintiff. It was found to be part of the assets of a trust created by S. L. Johns, against which the defendant had a claim. The finding of the learned chancellor was that the appellant had been defendant being bound in such event, by Sale would unquestionably be entitled to recover, of Goods Act, § 63, to accept, and as there was evidence of acceptance, within Sale of Goods Act, § 4, and section 11 entitles the buyer to treat fulfillment of a warranty as a condition precedent only where title has not passed, to plaintiff, in view of the acceptance, was entitled sections 49 and 69, recover for breach of warrecover, though defendant might, under ranty, which question was not raised. 2. Evidence 501 (6)-Testimony as to saving which would be effected by device admissible, although witness had made no test. In an action for the purchase price of an oil seal combustion control device, which, the seller said, would save a considerable percentage of fuel, testimony by a witness that the appliance as installed would effect such saving held admissible, though he had not made a test. 3. Trial 255(4)-Party desiring to limit the effect of evidence must request appropriate charge. dence admitted must request an appropriate A party desiring to limit the effect of evicharge for that purpose. 4. Sales 364 (2)-Refusal of request that failure to test device would preclude recovery proper. In an action for the purchase price of an oil seal combustion control device, which, the seller stated, would save a considerable percentage of fuel, the refusal of the buyer's request that if the seller had refused to make a test there could be no recovery was proper, in For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes view of evidence of acceptance, and the fur- the plaintiff (1) if the apparatus was comther fact that the contract did not require pletely installed and the conditions precedent tests unless a comparison of evaporative tests fulfilled and (2) if the apparatus was acceptwere found necessary, and there was no al-ed by the defendant. In the first case the legation of necessity. plaintiff was unquestionably entitled to re 5. Sales 178 (4)-Continued possession and cover the contract price. In the second case use may amount to acceptance. Under Sale of Goods Act, § 48, continued possession and use may amount to an accept ance, and so, in an action for the purchase price of a device, a requested charge that the jury might disregard defendant's possession and use was properly refused. Appeal from Supreme Court. Action by the Vapor Vacuum Heating Company against Kaltenbach & Stephens, Incorporated. From a judgment for plaintiff, defendant appeals. Affirmed. The plaintiff agreed in writing with the defendant to install in connection with their boilers an oil seal combustion control apparatus; 50 per cent. of the price was payable after the completion and successful operation of the apparatus and the balance within 60 days thereafter. They guaranteed that the apparatus would effect a saving of not less than 7 per cent. in cost of fuel. The contract provided that as cheap a grade of fuel would be used as could be burned to ad vantage; that changes that might take place in the market price of coal would be considered; that the saving would be computed according to a comparison that would be made of evaporative tests if found necessary; that in case the apparatus failed to effect the saving mentioned the complainant would remove it without cost to the defendant, upon receipt of written notice to this effect, and place the defendant's plant in the same condition it was at first; and that the system would be installed complete with blowers, all dampers, and patented apparatus necessary for the control of combustion. The plaintiff claims that the installation was complete the question would remain whether the plaintiff was entitled to recover the full amount of the contract price. In neither case could the defendant claim, as it does, a total absence of liability on the ground of nonperformance of a condition precedent. The contract was a contract for the sale of goods. The facts were very much the same as in Mechanical Boiler Cleaner Co. v. Kellner, 62 N. J. Law, 544, 43 Atl. 599, and bring the case within the rule of Pawelski v. Hargreaves, 47 N. J. Law, 334, 54 Am. Rep. 162, and within section 4 of the Sale of Goods ent. Act. Under that act the right of the buyer to treat the fulfillment by the seller of his obligation to furnish goods as described and as warranted as a condition of the obligation of the buyer to perform his promise to accept and pay for the goods, is limited to cases where the property in the goods has not passed. Sale of Goods Act, § 11 (C. S. p. 4650). But where the property in the goods has passed, the rights of the buyer are somewhat differThis is especially the case where the buyer has accepted the goods, as the jury found in this case (unless, indeed, they found that the plaintiff had completely performed, in which case the defendant was bound to accept). Sale of Goods Act, § 63 (C. S. p. 4662). The seller is not, by the buyer's acceptance, discharged from liability in damages for breach of any promise or warranty. Section 49. The buyer may, notwithstanding his acceptance, either set up the breach of warranty by way of recoupment, in diminution or extinction of the price, or maintain an action for damages for breach of warranty. Section 69 (C. S. p. 4663). The pleadings in the present case raise only the issue of complete performance, and the grounds of appeal present no question as to reduction of damages, recoupment, or counterclaim. The tions shall not be passed upon in the present defendant apparently desires that those queslitigation. Dealing with the question in this (1) Manifestly it aspect, we find no error. would have been improper to nonsuit the plaintiff or direct a verdict for the defendant. (2) It was proper to allow Hess to testify that the plant installed was in a position to effect a saving of not less than 7 per cent. of Wolber & Gilhooly, of Newark, for appel- | the cost of fuel used. If he had made no test, his testimony may not have been of much Carr & Carroll, of Camden, for respondent. importance, but it was not inadmissible. (3) December 20, 1918. Suit was begun March 21, 1919. The defendant claims that the installation was never completed. There was evidence that it was completed and also that it had been accepted by the defendant. The defendant claimed the right to reject the apparatus, generally because it was not com. plete, and specifically because it did not effect a saving of 7 per cent. as plaintiff guar: anteed. The verdict was for the plaintiff; from the judgment entered thereon the defendant appealed. lant. SWAYZE, J. (after stating the facts as above). [1-5] The charge of the learned trial judge permitted the jury to find a verdict for The letter of February 14th was admittedly relevant. If the defendant desired the court to qualify its effect, a request should have been formulated, and even then the matter For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (111 A.) would probably have been within the discre- The judgment is affirmed, with costs. NAUNCZIK v. MCALLISTER LIGHTERAGE (Court of Errors and Appeals of New Jersey. June 24, 1920.) SWAYZE, J. At the hearing on a petition for reargument, counsel agreed that the question of a rehearing should be disposed of on the briefs and arguments then presented. This we now proceed to do. By a slip, the word "decedent" was written in the opinion where the word "engineer" should have been written in three places. This slip has now been corrected in the original opinion. A sentence which is thereby made ambiguous in its pronoun has been stricken out. With these corrections we adhere to the view expressed in that opinion. [1, 2] We have given attention to the suggestion that the agreement under which the defendant furnished the boat and men to the Pennsylvania Railroad Company was a maritime contract, and amounted to a demise. We do not accede to this, but, assuming all the defendant claims, the authorities are against him. . It is enough to cite Standard Oil Co. v. Anderson, 212 U. S. 215, 29 Sup. Ct. 252, 53 L. Ed. 480. It is also argued that the question whether the engineer had consented to become the servant of the railroad company should have been submitted to the jury. The difficulty is that this point is not raised in the record. The only grounds of appeal are the refusal to nonsuit and the refusal to direct a verdict. Of course the defendant could not very well ask a direction of a verdict in its favor and at the same time ask that the case be submitted to the jury, but it might well have excepted to the charge if it wanted to raise the point. It failed to do so at the time; it cannot do so now. Let the judgment be affirmed, with costs. THOMPSON'S EXPRESS & STORAGE CO. 1. Master and servant 301 (4)-Agreement Question 14-May give one exclusive priv ilege of soliciting on platform at station. Under Railroad Act 1903, § 22, a railroad In an action against a lighterage company may give one person the privilege of soliciting for death of its employé furnished a railroad on the platform of a station for orders for with a boat contention that issue whether en- baggage delivery, hack, taxicab or omnibus servgineer of boat had consented to become service, from arriving passengers, and exclude othant of railroad should have been submitted to jury is not raised, where no exception was taken to charge. On reargument. Former opinion corrected, as corrected adhered to, and judgment affirmed. For former opinion, see 108 Atl. 770. Runyon & Autenrieth, of Jersey City, for appellant. Herbert Clark Gilson, of Jersey City, for respondent. ers in such business from doing so. 2. Carriers 13(2)—Giving exclusive privilege to solicit on station platform not discriminatory within Public Utilities Act. Entering into a contract with a railroad company, whereby exclusive right to solicit orders for baggage delivery, hack, taxicab, and omnibus service is given to one engaged in such business, is not unjust discrimination within the prohibition of Public Utilities Act, § 18, which refers only to what a public utility is under a legal obligation to do, a railroad not For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |