(108 A.) PER CURIAM. This appeal is dismissed, | evidence are strong evidence against him, but at appellant's costs, on the opinion of the he may prove that they were mistaken or were learned judge below, specially presiding, re- untrue, and is not estopped by them unless another has been induced by them to alter his fusing the preliminary injunction. condition, in which case the maker of the admissions is estopped from disputing their truth as to such person and those claiming under him, but is not bound as to third persons. (265 Pa. 9) MORRETT v. FIRE ASS'N OF PHILADEL PHIA. (Supreme Court of Pennsylvania. May 5, 1919.) 1. APPEAL AND ERROR 171(1)-NEW THEORY OF PARTY NOT CONSIDERED ON APPEAL. The Supreme Court will not consider a theory toward the trial different from the theory on which it was tried, as evidenced by the requests for findings, especially where such new theory, if followed, would deprive plaintiff of the right to place on record facts that would have been complete answer to it had such position been assumed during trial. 2. EJECTMENT 71-EFFECT OF DISCLAIMER. A disclaimer in ejectment has a distinct place, and without mistake, misunderstanding, or other good cause settles the groundwork on which the rights of the parties will be determined, and as between the parties is presumptively binding, though without any procedural value in any subsequent case. 4. ESTOPPEL 3(3)-DISCLAIMER OF TITLE IN EJECTMENT. That insured defending ejectment filed a disclaimer of all titles to premises, after taking out a fire policy, voidable if he was not at time of the fire the unconditional and sole owner of property destroyed, did not estop him from maintaining an action on policy, especially where he could neither read nor write English, and the disclaimer was filed by his attorney, who was also a party plaintiff in ejectment suit. 5. EVIDENCE 208(2)-WITNESSES 379(7) -PLEADING IN ANOTHER ACTION AS ADMISSIONS. In the trial of an action of assumpsit the pleadings in prior equity suit between the same parties are admissible as admissions to contradict their evidence in the case on trial, or to affect their credibility. 7. ESTOPPEL 98(1)-PARTIES BOUND. Estoppel binds parties and privies, but not strangers. Appeal from Court of Common Pleas, Luzerne County. Action in assumpsit on a policy of fire insurance by John Morrett against the Fire Association of Philadelphia, tried by agreement of the parties before the court without a jury. Judgment for plaintiff for $1,770, and defendant appeals. Affirmed. Argued before BROWN, C. J., and MOSCHZISKER, FRAZER, SIMPSON, and KEPHART, JJ. Harris B. Hamlin, of Wilkes-Barre, and Albert L. Moise, of Philadelphia, for appellant. John T. Lenahan, of Wilkes-Barre, for appellee. KEPHART, J. This is an action of as sumpsit on a policy of insurance to recover damages for the loss of a building destroyed by fire. By agreement of the parties, the case was tried by the court below without a jury, under the act of April 22, 1874 (P. L. 109), and the point in the case arises from a clause in the policy which reads as follows: "If the interest of the insured be other than unconditional and sole ownership; subject of insurance be a building on ground not owned by the insured in fee simple, the polnot owned by the insured in fee simple, the policy is not enforceable." The appellee acquired title from James C. Murray and Catherine Mulvey by article of agreement. This was known to appellant when the policy was issued. An action of ejectment was instituted by Murray and Mulvey against the appellant and A. Blanche Randall, after the date of the agreement, and after the policy was issued. In the ejectment, the appellee disclaimed "all title or claim of title or possession to the premises described in the above case and every part thereof." The disclaimer was acknowledged but not sworn to. To show lack of title in the appellee in the present action, the insurance company offered in evidence the disclaimer filed in the ejectment. The company contended, when the case was heard and the evidence was submitted in the court below, that the dis 6. ESTOPPEL 5, 8-EXPRESS OR IMPLIED AD- claimer of title estopped the plaintiff from MISSIONS BY PARTY TO SUIT. The express admissions by a party to a suit or admissions implied by his conduct and recovering in this case, for under the terms and conditions of the policy the plaintiff was not, at the time of the fire, the unconditional For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes and sole owner of the property destroyed. I which he would be very unwilling to follow Its attitude on the effect of the disclaimer is in another. The circumstances in the first apparent from the offer of the record in the case may have been such, and the reasons ejectment and the development of the trial. wholly sufficient to justify the pleader placing Appellant's requests for findings of fact and himself and his case in an attitude contrary law related solely to the legal effect of the to what may be the true state of affairs; disclaimer and the insufficiency of the evi- while the facts there admitted, either directly dence produced in the trial to overcome its or impliedly, will be deemed true for the apparent effect. It was there stated that the purposes of that issue, and for any judgment disclaimer raised a presumption of lack of based thereon, binding parties and privies title in plaintiff which had not been over- when relevant and material to a subsequent come by any competent evidence and prayed issue wherein the same parties are involved, for judgment on the record as it then stood. or those claiming under them and the transOur consideration will be limited to the evi- action in question, yet it may still be that dence presented as reflected in the purpose the facts do not exist, and were only confor which it was offered. ceded in the particular case because the parties did not deem it wise to put them in issue. Starkweather & Converse v. Kittle, 17 Wend. (N. Y.) 20, 23; 2 Chamberlayne on Evidence, p. 1584. As to strangers, when the admission is used in a subsequent case, the reason for the action taken in the first case, that the facts as there stated were not correct, with a truthful account thereof, may be given in evidence in the subsequent case. The disclaimer was competent as an extrajudicial admission in this action of assumpsit, and, as such, it was subject to an attack to show mistake, misunderstanding, retraction, inadvertence, lack of knowledge, or the like. [1] We shall not discuss any new theory or attitude toward the trial of the case, which was not properly before the court under the theory on which it was tried, as evidenced by the requests for findings. Especially must this be so where such new theory, if followed, would result in depriving the plaintiff of the right to place upon the record facts that would have been a complete answer to it, had such position been assumed during the trial of the case. If the defendant did not avail himself of a legal position that was fairly before him, and he desired to use it, he cannot now raise it to the prejudice of the opposing party, who thus might be deprived of bringing forth evidence that would be necessary to meet the legal position assumed. Maus v. Maus, 6 Watts, 275, 276; McMillin Printing Co. v. Pittsburgh, Carnegie & Western R. R. Co., 216 Pa. 504, 510, 65 Atl. 1091; Shipley v. Pittsburgh, Carnegie & Western R. R. Co., 216 Pa. 512, 65 Atl. 1094; Taylor v. Sattler, 6 Pa. Super. Ct. 229, 237. [2] What then was the effect of the disclaimer in the present case? A disclaimer in ejectment has a distinct place, and, in the absence of mistake, misunderstanding, or other good cause, it settles and determines the groundwork upon which the rights of the parties will there be determined As between the parties in the ejectment, it was presumptively binding, but it had no procedural value in any subsequent case. It did not lose in probative force, if it had any, when used in another proceeding, but, like any other piece of evidence, it was subject to contradiction, and its credibility could be attacked. [3-5] Indeed, as a part of the procedure in the ejectment, it could be withdrawn, retracted, explained through inadvertence, lack of knowledge, or other good cause, and when it was taken into the trial of another case wherein one of the parties was either plaintiff or defendant, it acquired no higher value. It was not secure from attack because it had, unmolested, performed an office in the case from which it was taken, 2 Chamberlayne on Evidence (1911 Ed.), §§ 1248, 1249. The reason is obvious. A party may The appellee could not read or write the English language. The disclaimer in the ejectment was procured by his attorney, who was also one of the plaintiffs in that case; he owed to the defendant fidelity of the highest degree. The appellee had paid for the property, procured a deed for it, and, in the face of these facts, he filed a disclaimer. Little wonder then that the counsel maintain with much force that he did not know what sort of paper he was signing. Where an effort to use a case stated as an estoppel as to the facts therein recited, which case stated was afterwards abandoned and suit instituted between the parties, the court says: "A case stated is a substitute for a verdict, * * * the supposed admissions of the case being actually in evidence, the testimony of the counsel who signed it became unquestionably competent to show, not only that his signature was gained by artifice, but that the actual assent of his client was not had." McLughan v. Bovard, 4 Watts, 308, 312, 313; and, on the general subject, see Floyd v. Kulp Lumber Co., 222 Pa. 257, 270, 71 Atl. 13. [6, 7] In the trial of an action of assumpsit the pleadings in a prior equity suit between the same parties are admissible as admissions to contradict their evidence in the case on trial, or to affect their credibility; but they are not to be taken as estopping the parties, against whom they are offered, from taking a different position in the case on the law side of the court. (108 A.) 1096. There is no doubt but that the express Rule by the Union Trust Company of Lanadmissions of a party to the suit, or admis- caster, trustee under the will of Oscar Hosions implied from his conduct, are evidence, hein, deceased, to amend or correct the recand strong evidence, against him, but he is ord in the estate. Rule discharged, and the at liberty to prove that such admissions were Union Trust Company of Lancaster, trustee, mistaken or were untrue, and he is not es- appeals. Assignments of error dismissed, topped or concluded by them, unless another and appeal quashed. person has been induced by them to alter his condition. In such a case the party is estopped from disputing their truth with respect to that person, and those claiming under him, and that transaction; but as to third persons, he is not bound. [8] It is a well-established rule of law that estoppels bind parties and privies, but not strangers. See Heane v. Rogers and Lloyd, 9 Barn. & Cress. 577, 586. The judgment of the court below is affirmed. (265 Pa. 14) In re HOHEIN'S ESTATE. From the record it appeared that on January 22, 1918, the orphans' court granted a rule to show cause why the court should not "amend or correct the record of the orphans' court to June term, 1902, No. 47, by making an order that the will in dispute should again be returned to the orphans' court, with a certificate of the result of the trial, and that a final decree be entered in the orphans' court sustaining the validity of said will and directing its probate, in accordance with the act of assembly in such case made and provided, or that the court make whatever order in the premises as to it may appear just and proper." Argued before STEWART, MOSCHZISK Appeal of UNION TRUST CO. OF LANCAS- ER, FRAZER, WALLING, SIMPSON, and TER. (Supreme Court of Pennsylvania. May 12, 1919.) 1. WILLS 392-JURISDICTION OF ORPHANS' COURT AND COMMON PLEAS ON RETURN OF PROCEEDINGS ON TRIAL OF ISSUE OF D. V. N. Where the orphans' court pursuant to Act March 15, 1832, (P. L. 138) § 13, issues a precept to the common pleas for an issue as to the validity of a will, and there is a verdict against its validity and the proceedings with the will are certified back to orphans' court, which thereupon enters a judgment accordingly, and the common pleas thereafter opens its judgment, and after another trial, without the will being brought back from orphans' court sustains the will, without returning its proceedings to the orphans' court, that court has no jurisdiction to require common pleas to return the will with a certificate that judgment had been entered therein against its validity. KEPHART, JJ. B. F. Davis, of Lancaster, for appellant. F. Lyman Windolph and M. G. Schaeffer, both of Lancaster, for appellees. STEWART, J. The appellant's effort here is to correct and supply by this proceeding a defective record, with a view to change the manner of distribution of the estate of Oscar Hohein, deceased, from that adopted by the orphans' court, which was as in cases of intions of a certain instrument which appeltestacy, and substitute therefore the direclant insists is the legally established last will and testament of the said Oscar Hohein. In the case of Union Trust Co. v. People's Trust Co., 254 Pa. 385, 98 Atl. 1062, we had occasion to pass on the sufficiency of this record to sustain the contention here made by the appellant as to the legal significance and effect of the instrument claimed to operate as a last will, and upon a very careful review of the case we were all of one mind that, as the record stood, the orphans' court having nothing before it but its own record, the decree revoking the probate of the disputed instrument was the equivalent of a decree of intestacy, and distribution of the decree of intestacy, and distribution of the decedent's estate was to be in accordance with the intestate law. The orphans' court record showed: (1) An appeal from the decree admitting to probate the instrument appellant relied on as the will of Oscar Hohein; (2) a precept for an issue in the usual form, with the alleged will attached thereto, directed to the common pleas and filed in that court June 12, 1903; (3) return of the precept with the alleged will, reciting that on trial of the Appeal from Orphans' Court, Lancaster issue verdict was rendered against the validCounty. ity of the will; and (4) decree of January For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes in the year (or otherwise de scribing the question), which said writing tament of said 14, 1904, reciting all these proceedings and vacating the probate of the instrument. The record of the common pleas does show that subsequently, September, 1906, on a rule granted, the judgment on the verdict in that court was opened, and a new trial granted resulting in a verdict sustaining the validity language of the precept. While the compeof the instrument as a will, which instru- tency of the common pleas to set aside the ment during all this period remained with judgment it had previously entered and grant the orphans' court, to which court it had a second trial is not to be questioned (Hambeen returned with the precept for an issue. bleton v. Yocum, 108 Pa. 305), yet it may well No judgment had been entered in the common be questioned whether a second trial of the pleas on the second verdict; no certificate issue without the disputed document being had been sent from the common pleas to the produced in evidence was not so wide a deorphans' court as to the result of the second parture from the ordinary procedure retrial; no revocation of the decree of the or- quired by the precept as to render the judg phans' court vacating the probate of the in- ment obtained thereon nugatory. However strument; and no production of the contest- this may be, it is unnecessary here to decide ed instrument at the second trial in the com- the question in view of another feature of mon pleas. It was upon these facts appear- the case which is determining, without quesing in the case of Union Trust Co. v. People's tion, and to which we shall now advert. Trust Co., supra, that we held that it was While several justifying reasons for the not error in the court below to refuse to pro-action of the court in dismissing the petition ceed with the adjudication of the account filed on the part of one claiming to act as trustee under the will. In that case it is said in the opinion filed, 254 Pa. 392, 98 Atl. 1064: "But, even though the defects indicated may be curable on due application to the proper courts with notice to all parties concerned (as to which we express no opinion at the present time), nevertheless, Tozer v. Jackson, 164 Pa. 373 [30 Atl. 400], shows that, in proceedings of this character, the several steps called for by our decisions and the relevant acts of assembly are in the nature of requisites which may not be treated as 'mere matters of form. and at least to this extent that case is authority at bar." of appellant might be given, either in itself sufficient, it will only be necessary to call attention to that most obvious. Manifestly. the orphans' court is without jurisdictional power to grant the order prayed for, or to pellant overlooks the fact that, as between enforce one if made. The contention of apthe two courts here involved, neither is superior to the other, but both of like rank and grade, and each distinct and separate with respect to jurisdiction. Neither can confer jurisdiction upon the other sua sponte, but only by legislative warrant, as this case illustrates. The power of the orphans' court to certify questions d. v. n. to the common pleas, there to be tried upon an issue framed, rests upon statutory provision. "It shall be [1, 2] What is now asked is an order di- lawful," says the statute of March 15, 1832, rected to the common pleas, requiring that in section 13, regulating appeals from registhe disputed instrument, which had been ters of wills to the orphans' court, "for the there judicially decided to be not a will, register (now orphans' court), at the request should be returned to the orphans' court, of any person interested, to issue a precept to overlooking and disregarding the fact that the court of common pleas of the respective the disputed instrument had previously been county, directing an issue to be formed upon returned to the orphans' court-where it still the said fact or facts, and also upon such othremains-accompanied by the certificate that ers as may be lawfully objected to the said judgment had been entered in that court writing, in the following form, viz." Then against the validity of the document as a follows the form prescribed, which becomes last will. Though this discredited instru- an integral part of the statute, and only as it ment had never been withdrawn from the or- is observed can the power be exercised by the phans' court, nevertheless, a new trial of the common pleas in such cases. The jurisdicissue certified to the common pleas was pro- tion of the common pleas begins upon the ceeded with in its absence by the common delivery to it of the precept from the orpleas, with the result that a contrary verdict phans' court, and ends with the certificate was reached on the second trial. The sig- of the latter to the orphans' court, certifynificance of this circumstance lies in the ing the result of the trial had in the premfact that upon this second trial the disputed ises. In the interim, that is, until return is instrument was not in evidence. The juris- made to the orphans' court of the result of diction of the common pleas extended no the trial, the jurisdiction of the common further than to try the issue indicated in pleas with respect to the proceeding is excluthe precept from the orphans' court "touch-sive. In the present case the common pleas, ing a certain writing hereto annexed, pur- observing the precept, formed an issue ac (108 A.) the result that judgment was entered against the validity of the will. Subsequently it made return of its proceeding, with the precept and the disputed instrument, to the orphans' court, and like judgment was thereupon entered in that court, where it remains to this day undisturbed. Nine years thereafter, in 1909, for reasons satisfactory to itself, the comon pleas set aside that verdict and again tried the case, with the result that a contrary verdict was there reached, and judgment accordingly entered, sustaining the disputed instrument as a will, but for some unexplained reason no return of such proceeding was made to the orphans' court. Its failure to do so was in disregard of the plain statutory requirement, and that disregard has continued to this day. The orphans' court's record so far as it extends is complete, showing as it does judgment entered in the common pleas on the issue certified to it. It can be supplemented only upon additional return from the common pleas, and this it cannot command. [3] The power exists to compel compliance by a judicial tribunal with a statutory duty; but that power is never conferred upon a tribunal of equal rank and grade with that complained against as being in default. We need say no more. The assignments of error are dismissed, and the appeal is quashed at the costs of the appellant. (265 Pa. 20) KIPP v. CENTRAL R. CO. OF NEW JERSEY. Trespass by Charles Kipp against the Central Railroad Company of New Jersey to recover damages for personal injury. Judgment on a verdict for plaintiff, and defendant appeals. Reversed, and judgment rendered for defendant. Argued before BROWN, C. J., and STEWART, FRAZER, WALLING, and SIMPSON, JJ. Edward J. Fox and James W. Fox, both of Easton, for appellant. John D. Hoffman, of Bethlehem, for appellee. STEWART, J. The plaintiff met with the injuries and sustained the loss in property of which he complains and charges to the negligence of the defendant, while attempting with his horse and wagon to cross over at a public crossing on Main street in the borough of Bethlehem the two tracks of the defendant company. He had without mishap crossed the first track, the track used for west-bound traffic, and had just about cleared the second track, used for east-bound traffic, when a passing train struck the rear wheel of his wagon, with the result that he was thrown from the wagon more or less injured, and the contents of the wagon were scattered indiscriminately. The only defense set up on the trial with which we have now concern was contributory negligence on the part of the plaintiff. At the conclusion of the evidence the defendant requested binding instructions to the effect that, such negligence having been shown, there could be no recovery, which instruction was refused. The result of the trial was a verdict in favor of the plaintiff (Supreme Court of Pennsylvania. May 12, in $4,000. A motion for a new trial and 1919.) 1. RAILROADS 328(4)-ACCIDENT AT CROSSING; CONTRIBUTORY NEGLIGENCE OF DRIV ER WITH OBSTRUCTED VIEW. judgment n. o. v. followed. In answer to the rule issued, and to avoid a new trial, plaintiff filed a remittitur of all in excess of $2,000, and thereupon judgment was rendered A driver familiar with a crossing who stop- for the latter amount, and the rule granted ped, looked and listened twenty feet from the was discharged. The appeal is from the judg nearest track, and observing the gates were up ment so rendered. The only assignment of drove on without stopping or looking again error that calls for consideration is the first, though his view was obstructed and struck on the second track held guilty of con- fusal to instruct that the plaintiff was guilty which complains of error in the court's retributory negligence as a matter of law. was of such contributory negligence as to prevent his recovery in the action. The facts upon which defendant relies to support its present contention are derived entirely and exclusively from the plaintiff's own testimony. A brief recital of them is all that may be necessary. The plaintiff was thoroughly familiar with the crossing on which the accident happened, having been The fact that the safety gates are not low-long accustomed to drive over it, as often as ered at a crossing does not relieve a driver from the duty of exercising ordinary care. three times a week in the course of his business. On this occasion when approaching it he stopped, looked, and listened at a point Appeal from Court of Common Pleas, some 20 feet from the nearest track. At this Northampton County. point he observed that the safety gates at For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |