SCHIFFMAN v. HILBERT.

Practice, C. P.-Plaintiff's Statement-Practice Act of 1915— Striking Off.

A motion to strike off an adversary's pleading must show, as an essential element, that the applicant for the motion is actually injured or prejudiced by the pleading.

Schleicher v. Hunsicker, 10 Leh. Co. L. J. 181, followed.

In an action in trespass for deceit practiced by defendant upon plaintiff in the sale of personal property, it is necessary for plaintiff to allege that the statements which induced her to buy were falsely and fraudulently made.

In the Common Pleas of Lehigh County. No. 24 January Term, 1923. Elizabeth Schiffman v. C. W. Z. Hilbert. Trespass. Motion to Strike off Plaintiff's Statement. Motion Overruled.

Dallas Gangewer, for Motion.
William H. Schneller, Contra.

Reno, J., December 17, 1923. If the statement of plaintiff's claim does contain conclusions of law, which is by no means plain, the defendant is not injured thereby. He can, notwithstanding them, prepare his affidavit of defense and proceed to trial. Hence, our case of Schleicher v. Hunsicker, 10 Leh. Co. L. J., 181, applies and we must decline to pass upon the motion to strike off.

It is true that the doctrine of Schleicher v. Hunsicker has not received the sanction of the appellate courts. But until it is reversed we shall adhere to it. We shall not permit the Practice Act of 1915 to be used as a means of raising mere academic questions which, however interesting as a mental exercise in metaphysics, do not affect the substantial justice of the case. A motion to strike off an adversary's pleading must show, as an essential element, that the applicant for the motion is actually injured or prejudiced by the pleading.

Apart from this, there is no merit in the motion. The action is in trespass. Manifestly, it is for a deceit practiced by defendant upon plaintiff in the sale of personal property. It was therefore, not only proper, but altogether necessary for plaintiff to allege that the statements which induced her to buy were falsely and fraudulently made: Cf. Righter v. Parry, 266 Pa. 373; Long v.

McAllister, 275 Pa. 34. The use of the words "warranted" and "warranty" are, of course, most unfortunate; but we assume, at least for the purpose of disposing of this motion, that they were used in a broad and general sense, a statement, rather than in the narrower and technical sense, signifying a promise. If, however, plaintiff has not used the words in the way we have supposed and endeavors, in this action for deceit, to recover for the breach of a technical warranty she must be prepared to suffer the consequences which always follow the confusion of two essentially different things: vide Vanleer v. Earle, 26 Pa. 277; Freyman v. Knecht, 78 Pa. 141; Shoe v. Maerky, 35 Pa. Super. Ct. R., 270; Dutton v. Pyle, 7 Pa. Super. Ct. R., 353; Erie City Iron Works v. Barber, 106 Pa. 125.

Now, December 17, 1923, motion to strike off plaintiff's statement of claim is overruled; defendant may file affidavit of defense within fifteen days after service hereof.

IN RE WILL OF DRUCILLA KELCHNER, DEC'D.

Wills-Testamentary Capacity.

Where a contestant contends that a will executed thirteen days prior to the will in dispute is valid, in the absence of testimony showing a sudden change of testatrix's mental capacity, the later will will not be held void for want of testamentary capacity.

Where the evidence of alleged incapacity is not at all convincing, it chiefly being that of the attending physician, which is neither conclusive nor even preferential, the will will be sustained.

In the Orphans' Court of Lehigh County. Appeal from Decision of Register of Wills. Appeal Dismissed. On October 6, 1922, the Register of Wills filed the following opinion:

This matter came before me on a citation to show cause why there should not be an appeal from my decision admitting to probate an alleged will of Drucilla Kelchner, deceased, dated the 27th day of March, 1920, and probated on July 3, 1922, and why an issue should not be awarded as to whether or not the testatrix had testamentary capacity, and whether or not the said will had been drawn under undue influence.

There was no testimony whatever, showing that any

undue influence was exerted upon Drucilla Kelchner in the making of the said will.

As to her testamentary capacity, while it is true that there was medical tsetimony showing that the testatrix was suffering from hardening of the arteries, she being about 83 years of age, and that that condition was effecting her mental vigor and at times probably made her labor under delusions, yet, the testimony is positive that in the matter of the contents of the will, and at the time it was executed by her, the testatrix was perfectly rational and comprehended what she was doing, and what disposition she was making of her estate. The will itself has no unconscionable clauses.

Under these circumstances, it is plain that the will so made should be sustained.

Now, October 6th, 1922, I, Charles F. Bartholomew, Register of Wills, dismiss the petition and citation for an appeal, and sustain the probate of the will heretofore made, at the cost of the petitioner for the citation, Alice E. Eddinger.

Calvin E. Arner, for Proponent.

Francis J. Gildner, for Contestant.

Reno, J., September 17, 1923. Nothing can be profitably added to the excellent opinion of our Register of Wills dismissing the appeal from the probate of decedent's will. There is practically no evidence of undue influence. The evidence relating to testatrix's alleged incapacity is not at all convincing. Apart from the testimony of the attending physician which is neither conclusive nor even preferential (Klein's Estate, 207 Pa. 191) there is little requiring comment. Contestant is naturally disappointed because a will which was executed thirteen days before the will in question did not become operative. The earlier will, contestant alleges, was entirely valid but the later will void for want of testamentary capacity. In the absence of testimony showing a sudden change of testatrix's mental capacity it is difficult to escape the conclusion that the real basis of contestant's complaint is disappointment. Naturally we may not hold a testatrix wanting in testamentary capacity

merely because she has not devised her property in accordance with the hopes of her heirs.

Now, September 17, 1923, the appeal from the decision of the Register of Wills is dismissed.

ELLIOTT v. SHIPMAN.

Negligence-Auto. Collision-Plaintiff's Statement-Striking Off-Damages-Measure-Practice Act of 1915, Section 5 and 13. Plaintiff sued in trespass to recover damages to his automobile, caused when defendant's automobile collided with plaintiff's automobile, while the latter was operated by plaintiff's wife.

Suggested, that it might be expedient for plaintiff to allege that his wife was driving his car with his consent.

Where, in a paragraph, the collision is alleged, without averring defendant's rseponsibility for it, and, in another paragraph, it is alleged that the damages "are the direct result of the carelessness and negligence of defendant," specifing the several elements of negligence, the first paragraph cannot be condemned because it does not allege defendant's negligence.

The plaintiff, in one paragraph, specified the various parts of the automobile damaged in the collision, and, in the concluding paragraph, (not numbered as required by the Act) alleged a total claim. Held. that the statement does not distinctly aver sufficient facts from which may be determined the basis or measure upon which plaintiff's claim was calculated.

In the Court of Common Pleas of Lehigh County. Charles R. Elliott v. Samuel M. Shipman. No. 47 June Term, 1923. Trespass. Motion to Strike off Plaintiff's Statement. Motion Sustained.

Dallas Dillinger, Jr., for Motion,
Robert S. Taylor, Contra.

Reno, J., December 17, 1923. Plaintiff sues in trespass to recover damages to his automobile caused when defendant's automobile collided with plaintiff's automobile while the latter was being operated by plaintiff's wife. Defendant moves to strike off plaintiff's statement upon grounds which we shall consider seriatim.

It is true that plaintiff does not, in terms, allege that his wife was driving his car with his consent. This probably would not of itself be sufficient ground upon which to condemn the statement, but since amendment

in other particulars is necessary the pleader will improve his opportunity to plead these facts more clearly.

In the third paragraph plaintiff merely alleges the collision without averring defendant's responsibility for it. In the fifth paragraph he avers that the damages "are the direct result of the carelessness and negligence of defendant," specifying the several elements of negligence. We cannot, as suggested by defendant, condemn the third paragraph because it does not allege defendant's negligence. It is enough that somewhere in the statement such allegation appears. Indeed, if that allegation had been joined with the allegation of the collision it is clear that the paragraph would have offended that provision of the Practice Act of 1915 (Section 5) prohibiting the inclusion of more than one material allegation in the same paragraph.

The allegations with respect to the damages suffered do not conform with the requirements of the Practice Act. In the fourth paragraph the various parts of the automobile injured in the collision are specified and in the concluding paragraph (not numbered as required by the Act) there is the allegation that "plaintiff claims of defendant $485.00." It is of course not necessary that plaintiff should itemize the cost of repairing each item of injury, but it is necessary that he distinctly aver sufficient facts from which may be determined the basis upon which his damage is calculated. Does he claim, as damages, the cost of repairs? Does he claim, as damages, the difference between the value of the automobile before and after the collision? Or are his damages computed upon the basis of repairs and also a consequent depreciation in value? Concerning the measure upon which the damages are calculated, defendant has a right to be informed so that he can properly prepare for trial. is no answer to assert, as does plaintiff, that since the Practice Act of 1915 (Section 13) makes it unnecessary for defendant to reply to averments of damages, plaintiff can construct his statement in violation of the Act. That provision does not confer upon plaintiff a license to draw his pleading in disregard of law. The Act (Section 5) requires that "every pleading" shall be drawn in accordance with its provisions and whether an answer to it is required or not, is beside the point.

It