April 18, 1888.

DuBois Borough v. Baker et al.

Husband and wife-Action for injuries to wife -Disclaimer by husband-Act of June 11, 1879.

was in the habit of getting intoxicated for three | Jan. '88, 164.
or four days after each pay day; that upon such
occasions "he came home and behaved uproari-
ously, just as an uproarious drunken man does,
and abused his family," it is certainly a link in
the chain of evidence tending to show habits of
intemperance. When it is alleged that a man is
drunk his behavior becomes material even to the
abuse of his family, as it is his conduct from
which the jury must, to a considerable extent,
draw their conclusions in regard to his condition.
We think it was error to exclude the evidence
referred to in these assignments.

Another branch of the defence was that the assured was afflicted with asthma. It was not error to refuse to allow the company to prove this by an inexpert witness. (See fifth assignment.) But when the same witness was asked whether O'Hara was afflicted with shortness of breath, the question should have been allowed. It referred to a matter of fact. The witness had worked with O'Hara, he could tell whether he had ever observed his shortness of breath without any medical knowledge. The question did not refer to the assured's disease (asthma), but to one of its symptoms which is visible to the inexpert eye.

In an action under the Act of June 11, 1879 (P. L. 126), brought by a husband and wife for the use of the wife to recover damages for injuries done to the wife, the proviso of the Act requiring "that at the time of bringing any such action the husband shall file a stipulation in writing disclaiming all right on his part to recover damages for such injuries by an action in his own name, and provided further that any damages so recovered shall be for the use of the wife," must be strictly complied with. A disclaimer by the husband filed at the time of trial of the action is too late, and the right to combine the two causes of action

under the statute does not arise.

The fact that evidence of the husband's damages tion; the right to recover those damages in such an was given without objection does not affect the quesaction depends upon compliance with the proviso.

Error to the Common Pleas of Clearfield County.

Case, by Joseph Baker and Mary his wife, for the use of said Mary, against DuBois Borough, to recover damages for physical injuries to the

We regard the answer to the defendants' sixth point as misleading. The point was: "If the jury find that Bernard O'Hara had had any med-wife. ical attendance within the year prior to his mak- At the trial, before KREBS, P. J., it appeared ing said application, then the plaintiff cannot re- that this action was brought on October 2, 1883, cover." The learned Judge affirmed this point to recover damages for an alleged injury to the as qualified in his general charge. An examina- said Mary Baker resulting from a loose plank in tion of the general charge does not furnish an a sidewalk which it was claimed tilted as she adequate answer to the point. The eighth inter-passed over it and caused her to fall into an open rogatory in the application is: "Have you had any ditch dug by a water company. On the day of medical attendance within the last year prior to the trial, May 25, 1887, the Court allowed the this date? If so, for what disease? Give name and husband, Joseph Baker, to file the following disaddress of the doctor in full." The object of this in-claimer :terrogatory is manifest. If the assured had no medical attendance within the time prescribed, and so answers, that is the end of it. But if he had such attendance, then the company is entitled to know for what cause he had medical advice or aid, and the name and address of the doctor, in order that they may ascertain the particulars from him. And if the assured falsely answers that he had no medical attendance, he is not entitled to recover. It follows that the point in question should have been affirmed.

Mary Baker, do for myself, my heirs, executors, and "Now 25th May, 1887, I, Joseph Baker, husband of administrators, hereby release and disclaim all right on my part to recover damages for injuries sustained by my wife Mary Baker by reason of the accident or injury claimed for in this suit, or for any loss of time or service, or for expenses for medical attendance, or for any other damages for which I could recover in an action in my own name against DuBois Borough for said injury.

Witness my hand and seal this 25th day of May A.D. 1887.

Winess:

ALLISON O. SMITH.

his

JOSEPH X BAKER. [SEAL.]

mark

The Court charged the jury, inter alia, as follows: "If this plaintiff did suffer, as she alleges here, and you do so find by the testimony in this case, then she is entitled to compensation for the pain and suffering she endured in addition to the outlays of money made by her

husband in the shape of doctor bills, for the service of servants, and for the loss of her service to him; he having in this case filed a disclaimer on his part, and put upon record his declaration that he does not and will not seek to recover for

his wife's services, nor for any expense arising in consequence of the injury had. Having filed such a paper, you may therefore in this case award to the wife the loss of her own personal services, what they were worth to her in her station of life, and to her husband. In measuring that, you have a right, of course, to consider her station in life and what her possibilities or earnings were. For the wages or compensation of servants employed, you have a right to award such amount as is reasonable and proper, and what would be compensation to the persons that performed the services claimed for. As to the amount of the doctor bills paid out by the husband, he alleges that he paid out about $150, but that he kept no actual account of it, not thinking it necessary at that time, and cannot give the exact amount now. You can probably arrive at what a fair and reasonable amount would be for that, as some of you no doubt have had the attendance of a physician and know what would be the probable charge."

Testimony was given to prove the damages of the husband, without objection by either party. Verdict for $454.90 in favor of plaintiff, which was afterward reduced to $375, and judgment thereon; whereupon defendant took this writ, assigning as error: (1) The Court erred in permitting the above disclaimer to be filed at the trial with the same effect as if filed at the time of bringing suit. (2) In charging the jury as above

set forth.

Thomas H. Murray (Cyrus Gordon with him), for plaintiff in error.

The measure of damages to wife and husband respectively in separate actions is stated in

Susquehanna Depot v. Simmons, 2 Amer. 384. There can be no greater measure in a suit by the wife, except by virtue of a disclaimer filed by the husband under the Act of June 11, 1879.

The language of the Act is plain and as imperative as if it prohibited the filing at any other time than at the bringing of the suit.

Kensington v. Keith, 2 Barr, 218. There being nothing in the context rendering this language repugnant, it should be given its ordinary meaning.

1 Kent's Com. 462.

Mullan v. May, 13 Mees. & W. 511.
Fairlee v. Corinth, 9 Vermont, 269.

This principle of construction is settled by the adjudged cases, and is also the subject of statutory enactment.

Act March 21, 1806, Purd. Dig. 58.

A. L. Cole (Allison O. Smith with him), for defendant in error.

The permission to file the disclaimer at the trial was simply extra-judicial, and hence not error. Statutes are to be construed so as to best effectuate the intention of the Legislature.

Commonwealth v. Train, 16 Pa. 163.

If evidence went in as to the damages of the husband without objection, and no point was presented asking for special instruction on said evidence, an exception to the charge of the Court generally will not reach what the plaintiff in error is seeking for.

Overseers v. Overseers, 5 Cent. Rep. 298.

The plaintiff in error took the risk of a verdict without objecting to the evidence when offered, and should not now be allowed to take advantage of the charge of the Court based on such evidence. Especially is this the case where the

error is harmless.

Schmoyer v. Schmoyer, 5 Harris, 520.
Johns v. Battin, 6 Casey, 84.
Hoskinson v. Elliott, 12 Smith, 393.
Blackstock v. Leidy, 7 Harris, 335.

This was an

April 30, 1888. THE COURt. action brought by a married woman and her husband, in right of the wife, to recover damages for a personal injury to the wife. In order that the damages which might be recovered by the husband should be recovered in this action, along with those which belonged peculiarly to the wife, the husband on the day of the trial filed a disclaimer of all his damages under the first section of the Act of 11th June, 1879 (P. L. 126). When the application to file the disclaimer was made to the Court the defendant objected on the ground that the Act requires the disclaimer to be filed at the time of bringing the suit, but the Court overruled the objection and granted the defendant an exception.

The first section of the Act is in the following words :

"That in all actions hereafter to be brought in any of the Courts of this Commonwealth in the name of the husband and wife for the use of the wife to recover damages for injuries done to the wife, evidence may be given to show the value of the wife's services and the expense arising in consequence of such injuries and recovery may be had therefore; provided, however, that at the

The office of a proviso is to qualify the enact-time of bringing any such action the husband The office of a proviso is to qualify the enact-shall file a stipulation in writing disclaiming all ing clause. right on his part to recover damages for such injuries by an action in his own name, and pro

Minis v. United States, 15 Peters, 445.

Kensington v. Keith, supra.

An expressed statutory condition must be ad- vided further that any damages so recovered shall

hered to.

be for the use of the wife."

Hermis v. Leoni, 1 Sm. 417.

three bales of yarn for sale, represented to be “20-cut"
L. consigned to C. & Co., commission merchants,
yarn, worth about forty-five cents per pound. The
bales were tested by reeling and weighing samples
from them, and the yarn, as C. & Co. alleged, was
found to be an inferior article, ranging from 18 to 30
"cuts."
highest price offered was 30 cents per pound. C. &
Efforts were made to sell the yarn, but the
Co. wrote to L. and asked for instructions, but before
an answer was received, closed out the consignment at
the price offered, and made sale accordingly. L. de-
that it should have brought 45 cents, and brought
nied that the yarn was an inferior article; insisted
suit to recover the difference between that price and
the price at which it was sold.

Held, that if C. & Co. had not exercised their discretion before the instructions came, the direction of the owner set the limitation within which their discreder the circumstances of the case, the question whether tion must thereafter have been confined; but that unthey had acted in good faith, and with a due regard to the duty they owed the consignor, should have been submitted to the jury.

Prior to the Act of 1879 the wife could only [ of all the circumstances, and is neither bound to write recover the damages which were personal to her- for instructions, nor, having written, to wait for a reply. self and the husband had a right of action for the loss of the wife's services and the expense to which he was subjected for the medical treatment and nursing of the wife and such medicines and other necessary expenses as were incident to her recovery. By the Act in question provision was made for the recovery of the husband's damages in the action by the wife. It required a statute to make this transfer. The right to make the transfer, however, so that it should become effective for the wife, was made dependent upon a certain condition, to wit: that the husband should file his disclaimer at the time of bringing the action. In this case the action was brought on October 2d, 1883, but the disclaimer was not filed until May 25th, 1887, just as the case was called for trial. The plain letter of the statute was therefore violated, and as a necessary consequence the right to combine the two causes of action did not arise. We cannot disregard the very words of the Act. Their meaning is not in the least degree doubtful, and as a matter of course we must enforce them. Both the right to give evidence of the husband's damages and the right to recover for them are given by the enacting clause, and compliance with the explicit terms of the proviso clause is as essential to the one as to the other. Hence, there is no force in the arguThe claim of the plaintiff was for the market ment that the evidence of the husband's damages value of three bales of yarn (551 lbs.), conwas given without objection. The right to re-signed by him to the defendants, who are comcover those damages in this action still depended upon compliance with the proviso. We are clearly of opinion that there was error both in permitting the disclaimer to be filed at the time of the trial and in directing the jury that they might allow for both the husband's and the wife's damages in their verdict.

Judgment reversed, and new venire awarded.
Opinion by GREEN, J.
TRUNKEY, J., absent.

Jan. '88, 276.

Error to the Common Pleas No. 1, of Philadelphia County.

Appeal from judgment of a magistrate, wherein Charles H. Lewis was plaintiff, and John M. Conway and E. H. Hamilton, trading as John M. Conway & Co., were defendants.

mission merchants, for sale on commission, and alleged to have been wrongfully sold by them at 30 cents per pound. The facts of the case are fully set forth in the opinion of the Supreme Court, infra.

The Court, PEIRCE, J., charged the jury, inter alia, as follows: "The first question which arises is, were the defendants guilty of negligence? Their duty was to get the best price they could, and having written for instructions, they were bound to await a reply; to receive the instructions asked by them, and if they sold without awaiting a reply, this was negligence." (Fifth March 29, 1888. assignment of error.)

H. S. P. N.

Conway et al. v. Lewis. Commission merchants-Consignment of goods for sale without instructions-Duty of consignee in such cases.

A consignor who desires to limit the price at which his goods are to be sold, should say so in express terms, and if he omits to do so, the consignee has the right to consider the sale of the goods as referred to

his discretion.

A consignment of goods for sale without special instructions or limit as to price, confers upon the consignee the right to exercise his own judgment in the sale. He is bound to use his best judgment in view

Defendants submitted the following points: (1) To entitle the plaintiff to recover, he must prove that defendants were guilty either of breach of orders, fraud, or negligence; and unless the jury can find from the evidence that the defendants were guilty of breach of orders, fraud, or negligence, then the verdict must be in their favor. Affirmed.

(2) There is no evidence in the case of breach of orders or fraud on part of the defendants; therefore it must be proved that they were guilty of negligence to entitle the plaintiff to recover. Answer. I affirm this point with a qualification; if the defendants wrote for orders, and sold be

fore getting orders, while this was not a sale | prudence, and skill, but the question in our case against orders, yet it was a sale without orders, is did the factor so act. The facts show negliand would constitute negligence on the part of gence. the defendants. (First assignment of error.) (3) If the jury find from the evidence that the plaintiff did not fix or limit any price upon the yarn in question prior to the sale, and that 30 cents per pound (the price obtained by defendants) was a fair market price for said yarn at the time of sale, then the verdict must be for the defendants. Refused. (Second assignment of error.)

April 30, 1888. THE COURt. Conway et al., defendants below, were commission merchants. Lewis consigned three bales of yarn to them for sale. It was represented to be a 20-cut yarn worth at that time about forty-five cents per pound. The bales were tested by reeling and weighing samples from them, and the yarn, as (4) If the jury find from the evidence that the Conway alleges, was found to be not an even 20plaintiff did not limit any price upon the yarn cut, but an uneven and inferior article ranging prior to the sale, that defendants made reasonable from eighteen to thirty cuts. Efforts were made and proper efforts to obtain a fair price for the by Conway et al. to sell the yarn, but the highest yarn, and that 30 cents per pound was as much price offered was, as they allege, thirty cents per as they could obtain for it, which amount was re- pound. They wrote to Lewis the result of their mitted by them to the plaintiff, less freight and efforts to sell, and the price they were offered, commissions, then the verdict must be for the de- and asked for instructions, but before an answer fendants. Refused. (Third assignment of error.) was received they decided to close out the con(5) If the jury find from the evidence that the signment at the price offered and made the sale plaintiff did not limit any price upon the yarn accordingly. Lewis denies that the yarn was an prior to the sale, then defendants were not bound uneven and inferior article, insists that it should to communicate with or consult him before have brought forty-five cents, and brings this making a sale; hence the fact that the defen-suit to recover the difference between that price dants wrote to plaintiff, asking him if they should and the price at which it was sold.

sell at 30 cents, but afterwards sold at that price At the conclusion of the evideuce on the trial before receiving a reply, has no bearing on plain-in the Court below, the defendants submitted a tiff's right to recover, and does not in any way alter or increase defendants' responsibility in this case. Refused. (Fourth assignment of error.) Verdict for plaintiff for $109.68. A rule for a new trial having been discharged, defendants took this writ and assigned error as above.

William B. Lane, for plaintiffs in error.
When a factor receives goods for sale without
instructions as to price, he is at liberty to sell on
the best terms he can obtain at the time, and is
responsible only for good faith and reasonable
prudence and skill. If these requirements are
complied with, the factor is not liable for any loss
sustained by the consignor, a fortiori if he has
sold the goods at a fair market price.

Edwards on Factors and Brokers, sec. 25.
Russell on Factors and Brokers, *29, *31.
Story on Agency, sec. 198.

Smedley v. Williams, 1 Pars. Eq. Cas. 359.
Geyer v. Decker, 1 Yeates, 486.

1 American Leading Cases, 667.
Smart v. Sanders, 3 C. B. 379.

Marfield v. Douglass, 1 Sandf. (N. Y.), 360.
Id. v. Goodhue, 3 N. Y. 62.

Milbank v. Dennistoun, 10 Bosw. (N. Y.) 382.
Jervis v. Hoyt, 2 Hun (N. Y.), 637.
Cotton v. Hiller, 52 Miss. 7.
Joseph J. Knox, for defendant in error.
Conway & Co. having elected to write for
instructions were bound to wait for them.

The authorities cited by plaintiffs in error show that a factor without instructions as to price (in ordinary cases) is at liberty to sell without asking for instructions, providing he exercises good faith,

series of points, in the first of which they asked the Court to instruct the jury that "unless the jury can find from the evidence that the defendants were guilty of breach of orders, fraud, or negligence, then the verdict must be in their favor." This was affirmed without qualification. The second point narrowed the general proposition contained in the first to meet the defendants' view of the evidence, and asked the Court to say that "there is no evidence of breach of orders, or fraud on part of defendants, therefore it must be proved that they were guilty of negligence to entitle the plaintiff to recover." To this the learned Judge replied: "I affirm this point with a qualification: if the defendants wrote for orders, and sold before getting them, while this was not a sale against orders, yet it was a sale without orders and would constitute negligence on the part of the defendants."

We cannot agree to this definition of negli gence. The consignment of the goods to the defendants for sale without special instructions, and without limit as to price, conferred upon them the right to exercise their own judgment in the sale. They were bound to the use of their best judgment in view of all the circumstances, and were neither bound to write for orders, nor, having written, to wait for a reply. It might have been prudent to wait for the reply, but their duties as factors were not changed, nor their powers diminished by the fact that they had written for direc tions.

Until the answer was received they were at judication of the account of the trustee under the liberty to sell upon their own judgment, and if original will: acting in good faith were entitled to protection. The general rule is clearly stated in Par. Eq. Cas. (vol. i. p. 363), in these words: "If the consignor desires to limit the price at which his goods are to be sold, he should say so in express terms, and if he omits to do so, the consignee has the right to consider the sale of the goods as referred to his discretion."

Appeal of George S. Pepper, trustee and exIf the consignees had not exercised their dis-ecutor, from a decree of the Orphans' Court of cretion before instructions came, then the direc- Philadelphia County, dismissing exceptions and tions of the owner set the limits within which confirming the adjudication of the account of their discretion must thereafter be confined; but appellant as trustee. if they had made the sale the questions were The facts of this case are fully stated in the whether they had acted in good faith, and with a report of the case in the lower Court (ante, p. due regard to the duty they owed the consignors. 271). From the decree of the Court, entered in This was for the jury under the evidence in accordance with the opinion of ASHMAN, J., the this case, and should have been submitted to them. said George S. Pepper, accountant, took this The assignments of error all relate to this sub-appeal, assigning for error, the action of the ject and are all sustained.

Court in deciding that the power of appointment had not been validly exercised, and the distribu

tion made of the balance in the hands of the accountant.

John G. Johnson (William B. Robins with him) for the appellant.

The intention of this testator must be interpreted in accordance with the suggestions of

April 2, 1888. common sense.