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In an action by a father to recover for personal injury to his minor son caused by negligence it is error to charge the jury, without evidence, that such son was likely to earn more than his present wages in the near future “by way of promotion.” TRESPASS by a father to recover damages for personal injury to his son. Such son, seventeen years of age, was injured while working at a candy rolling machine in defendant's factory. Such machine was fitted with a safety guard invented by the defendant, but such guard was not in general use in other similar factories. The defendant, after working the machine the day of the accident, took off the guard about 7 o'clock, and directed the boy to go on with the work; this he did, and worked about four hours before he was injured. Judgment for the plaintiff, and defendant appealed.

H. M. North and E. D. North, for the appellant.
B. F. Eshleman and G. Nauman, for the appellee.

207 MITCHELL, J. The evidence of the general use of the machines throughout the trade, without guards (assignments 10 to 16 inclusive), should have been admitted. In all actions for negligence it is important that the jury should be informed explicitly just what the negligence consists in. The average untrained mind is apt to take the fact of injury as sufficient evidence of negligence. Moreover, the use of a dangerous machine is very commonly considered ground for holding the employer responsible, whereas the test of liability is not danger, but negligence, and negligence can never be imputed from the employment of methods or machinery in general use in the business: Titus v. Bradford etc. R. R. Co., 136 Pa. St. 618; 20 Am. St. Rep. 944; Kehler v. Schwenk, 144 Pa. St. 348; 27 Am. St. Rep. 633. It is true that the general custom would not be conclusive of this case, under its peculiar cir. cumstances to be noticed next, but it was the starting point in the defense, and the defendant was entitled to show it affirmatively so as to impress it on the jury's mind. Moreover, the evidence offered in the fifteenth assignment of error, to show that the same kind of machines were used without guards in another factory where plaintiff's son had previously worked, bore directly on the only point in the case on which the defendant's negligence could be rested. This was that if plaintiff's son had only been accustomed to the machine with the guard, and might be liable from force of habit, or

ignorance of the increased danger when the guard was removed, to push his fingers too close to the rolls and thereby get them caught, he would have been entitled to special 258 instruction as to this danger. As to what conversation or orders took place between the boy and his employer on this point the evidence was conflicting. The case therefore could not have been taken from the jury, but the defendant was entitled to have explicit directions that the use of the machine without a guard being the ordinary habit of the trade was not negligence prima facie, and would only become so if the boy's inexperience was such that he ought to have had special instructions when the change was made. The learned judge not only failed to give the defendant the benefit of the general rule in his charge, but excluded the evidence which would have put the facts before the jury.

There was error also in the charge as to damages. The boy was earning two dollars and a half a week. If it was claimed that he was likely to earn more in the near future the plaintiff sbould have proved the fact as part of his case, but the learned judge, without any evidence on the subject, threw in a suggestion that the boy might get more" by way of promotion." The verdict was in favor of the father for more than double the boy's gross wages until he should reach twentyone. We cannot say that this suggestion as to promotion may not have contributed to this result.

The learned judge appears in the opening of his charge to have read the plaintiff's statement to the jury, including the averment of damages. This is exceedingly bad practice. It tends to get figures and amounts into the jury's mind without evidence. Here again the verdict is suggestive, for it is for one thousand dollars, the exact amount of the technical ad damnum clause in the statement.

Judgment reversed and venire de novo awarded.

MASTER AND SERVANT.-THE TEST OF THE LIABILITY OF A MASTER to his servant is negligence, not danger: Kehler v. Schroenk, 144 Pa. St. 348; 27 Ain. St. Rep. 633, and note, with the cases collected.

MASTER AND SERVANT-MACHINERY IN GENERAL USE. — The unbending test of negligence in methods, machinery, and appliances is the ordinary usage of the business: Titus v. Bradford etc. R. R. Co., 136 Pa. St. 618; 20 Am. St. Rep. 944, and note. When the machinery furnished by a master for the use of his servant is of the kind in common use for the same purpose the master is justified in using it, and will not be liable for an injury caused thereby unless he has information or reason to believe that its use is attended

with danger, or that a safer kind of machinery is in common use for the same work: Nix v. Texas Pac. Ry. Co., 82 Tex. 473; 27 Am. St. Rep. 897, and note. An employer is bound to furnish machinery and appliances of ordinary character and reasonable safety, and the former is the conclusive test of the latter: Kehler v. Schwenk, 144 Pa. St. 348; 27 Am. St. Rep. 633, and note.

See the notes to Monmouth Min. etc. Co. v. Erling, 39 Am. St. Rep. 193; Lehigh etc. Coal Co. v. Hayes, 15 Am. St. Rep. 682; and the es. tended notes to Kelley v. Silver Spring Co., 34 Am. Rep. 621, and Buzaell v Laconia Mfg. Co., 77 Am. Dec. 218.




corporated associations whose membership is large, suits may be brought by some of the members in their own names on behalf of, or as representing all, or in the name of the association by certain of its


contention between the members of an unincorporated association a to the present right of possession of its property must be decided by the constitution and by-laws of the association, or, in the absence of any sufficient provision therein, by the majority of the members. The right of possession in such case is generally joint and not several. REPLEVIN to recover furniture and other personal property. The Liederkranz Singing Society was composed of about twelve active, and two hundred passive, members. meeting of the active members of the society it was resolved by the majority to remove the headquarters of the society to the hall of the Germania Turn Verein. The president, vicepresident, and one trustee of the former society thereupon moved its property to the new quarters. The members of the society who were in opposition then brought this suit un. der the name of the Liederkranz Singing Society of Lancaster, Pa., by F.C. Ostermayer et al. of the Board of Trustees of said Society v. Germania Turn Verein of Lancaster, Pa., and the aforesaid officers of the former society. The trial court entered a nonsuit on the motion of the defendants, on the grounds that the complainants had established no legal party plaintiff and had shown no right to maintain the suit, and that the defendants were entitled to the possession of the property in suit. The complainants appealed.

At a

B. F. Davis, for the appellants.

J. A. Coyle, W. U. Hensel, J. H. Brown, and W. R. Brinton, for the appellee.

268 MITCHELL, J. It is conceded that in cases of unincorporated associations whose membership is large, suits may be brought by some of the members in their own names on behalf of or as representing all. The present action, therefore, would have been sustainable if brought in the name of Ostermayer and others in behalf of the members constituto ing the Liederkranz Society. It was brought in the name of the Liederkranz Society by Ostermayer et al. There is no substantial difference. The allowance of suits in any such form is a modification of the ordinary requirements as to parties, introduced by equity in the interest of practical convenience. “The second class is where the parties form a voluntary association for public or private purposes, and those who sue or defend may fairly be presumed to represent the rights and interests of the whole. In cases of this sort the persons interested are commonly numerous, and any attempt to unite them all in the suit would be even, if practicable, exceedly inconvenient": Story's Equity Pleading,

It is necessary that the suit should be brought on behalf of all the parties in interest, but this may as well be done in substance by using the general name which describes them all, as by the phrase "in behalf of themselves and all others interested.” The latter is the usual form, and it is always better to adhere to established practice, but, there being no plea in abatement here, the common interest of the parties being substantially expressed on the record, and there being individual plaintiffs responsible for costs, the case was not in position to be nonsuited for want of parties.

Unincorporated societies have long held in this state an intermediate position between corporations and partnerships. 269 Those for religious purposes, it is said by Lowrie, J., in Phipps v. Jones, 20 Pa. St. 260, 59 Am. Dec. 708, “have always, and especially since the act of 1731, been recognized as having an associate and quasi corporate existence in law." Their ownership of property is of the same intermediate character. It partakes of the qualities of both the others, the title being for many purposes joint and several like that of partners or joint tenants, while the right of possession is joint only as in corporations. Where the question of the

sec. 107.

right of present possession arises it must be decided by the constitution and by-laws of the association, or, in the absence of any sufficient provision therein for such a case, by the majority. That is the real issue here. The plaintiffs claim the right to represent the association in the possession of the property sued for. If they can establish it they will be entitled to the verdict; if not, they must fail.

Judgment reversed and procedendo awarded.

UNINCORPORATED ASSOCIATIONS-ACTIONS.-PARTIES: See the extended note to Phipps v. Jones, 59 Am. Dec. 711-718.

UNINCORPORATED ASSOCIATIONS - - PROPERTY RIGHTS. - How DECIDED: See the extended notes to Otto v. Journeyman Tailors' eta. Union, 7 Am. Ste Rep. 168, and Connelly v, Masonic Writ. Ben. Assn., 18 Am. St. Rep. 301



enters into an oral contract to sell it, and subsequently executes a written agreement to sell the same land to another party, the latter is pot entitled to specific performance of his contract in order to prevent

the vendor from executing and carrying out the first contract. SPECIFIC PERFORMANCE-PARTIES. —After an owner of land has ignored his

written agreement to convey the land, by conveying to another under a prior oral contract, the purchaser who has paid the purchase money and directed the deed to be made to a third person is a necessary party to a bill for specific performance filed by the holder of the written agreement against the vendor and against the grantee in the deed to

have the latter declared a trustee of the legal title. SPECIFIC PFRFORMANCE.—EVIDENCE TO DEFEAT.-Any evidence that shows

that a decree of specific performance, eren of a written agreement of sale, would be unfair or inequitable, is sufficient to defeat the appli.

cation. SPECIFIC PERFORMANCE-DAMAGES.—If, on the trial of a bill for specific

performance of a contract to convey land, it appears that the vendor has made the execution of the agreement impossible, by the perform. ance of a prior contract of sale and the acknowledgment and delivery of a deed in pursuance thereof, his liability upon the second contract is for dainages only. D. W. Sellers, for the appellant. F. C. Brewster and T. F. Jenkins, for the appellees.

886 WILLIAMS, J. The report of the master shows the facts important to a decision of this case very clearly. The house and lot in controversy appear to have been the sepa

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