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man, however, refused to testify unless all as it may find the latter to be. Com. v. Smith, other Italians were removed from the room, 221 Pa. 552, 553, 70 Atl. 850; Meyers v. Com., claiming he was afraid vengeance would be 83 Pa. 131, 143, Paxson, J.; Com. y. Colandro, visited upon him if his testimony were heard | 231 Pa. 343, 356, 80 Atl. 571. by them. Upon objection from the district | [15, 16] In this connection it is particularly attorney the trial judge said:

important that the learned court below should “The court is of opinion that it does not have not overlook the relevant rules of law and disthe power to grant the application; therefore tinctions to be kept in mind when considering the objection to so doing is sustained."

the case from the aspects of self-defense and A request of this character is within the manslaughter, respectively, as pointed out in discretion of the trial judge, and had the Com, v. Colandro, supra ; and, if the fact that court below, in the exercise of its discretion, i the defendant had been accused of killing anrefused the one at bar, we would be loath to other man is again brought forward in the characterize such a ruling as reversible er- same way as at the last trial, the jury should ror; but clearly in the present instance the be instructed as to the relevancy of the testijudge was wrong in ruling that he had no mony upon that subject, and that inquiry conpower to grant the application. Archbold's cerning the matter is permitted only for the Criminal Practice & Pleading (8th Ed.) vol. limited purpose of “ascertaining the opportu. 1, p. 539, n. 1; Bishop's New Criminal Pro- nities, sources, and extent of the knowledge cedure, vol. 1. $$ 1188-1190; 12 Cyc. 546. of the respective witnesses on the point of the

[12] During the course of the trial certain general reputation of the defendant, and not character witnesses admitted on cross-ex- to show that defendant was probably guilty amination that two or three years prior of the other offenses." Com, v. Colandro, suthereto they had heard Principatti accused | pra, 231 Pa. at page 355, 80 Atl. at page 575. of killing another man; but in that connec- [17] It appears that Principatti's face is tion the district attorney admitted that “the badly scarred on both sides, and that these grand jury ignored the bill against the de- ugly blemishes are plainly visible. Counsel fendant." It is alleged the representative for defendant, fearing that, through a misunof the commonwealth, in summing up, said

derstanding as to the source of his client's to the jury:

disfigurement, the jury might become prejuThat "three years before the defendant, Dom

diced against the latter, offered to show that inic Principatti, had in cold blood killed a this came about through no fault of his own.

that it is true the grand jury disregarded To enter upon such an investigation might the bill, and that unfortunately the district at

lead to collateral issues that would seriously torney was a party thereto."

confuse a trial; hence we cannot say error If made, these remarks were highly improp was committed in the refusal of the present er; there being no testimony in the case offer. that defendant had "in cold blood killed a [18] The accused tendered in evidence an man," or that the bill relating to the alleged anonymous letter received by him on May 1, crime had been ignored at the instance of 1916, almost a year before the killing, which the district attorney. We take it for granted, he claimed to be a “Black Hand" communicahowever, that no such mistake will occur at tion. We have read the epistle in question, the next trial; hence it is unnecessary fur and, considering its remoteness from the day ther to discuss the matter.

of the crime and the lack of any evidence to (13, 14] Several of the assignments criticize connect the deceased therewith, we cannot the charge upon the ground that it either say that its exclusion was error. omits all reference to or contains no sufficient [19] The fact that Principatti surrendered instructions upon the various important mat- himself and gave up his pistol to an officer of ters which came before the jury at trial. We the law within an hour after the shooting, shall briefly refer to such of these as we was put in evidence; but the trial judge did deem material. The trial judge said nothing not err in refusing to permit the defendant to about the threats which Amodeo is alleged to be interrogated, or in declining to let in other have made against the defendant, or their evidence concerning his self-serving declara possible effect upon the mind of the latter ; tions at that time. further, he did not, in his general charge, suf- [20] There are 29 assignments, covering ficiently refer to or discuss the evidence as more than 30 printed pages. We do not deem to the dangerous character of the deceased, it necessary specifically to refer to each of nor did he point out its bearing upon the de these, but have sufficiently reviewed those of fense set up by the accused. Although these importance. Many of them, standing alone, omissions are possibly corrected by the affirm. do not show reversible error; but several do, ance of certain of the latter's requests, at the and together they present a clear case of misnext trial all such material matters should be trial. Were the matters of complaint all of a specifically referred to in the body of the minor character, we would be disinclined, charge. Moreover, at that time the trial judge considering the evidence against the accused, should be careful not only to state all appro to set aside the present judgment; but so priate rules of law, but to point out their rele much harmful error is called to our attention vancy with sufficient explicitness to enable the that, if the right to due and lawful trial is to The defendant may not be able to substan- , form plaintiff that a first mortgage on premtiate his various offers of proof, or the jurors ises purchased from a third party had been may disbelieve the testimony with reference reduced to judgment. Verdict for plaintiff thereto, if produced, or, if believed, they may for $2,600, and defendant appeals. Reversnot draw the inferences or conclusions there ed, and judgment entered for defendant. from that he contends for, in fact, they may Argued before POTTER, STEWART, entirely discredit his version of Amodeo's ac- | MOSCHZISKER, FRAZER,and WALtions immediately before the shooting, as LING, JJ. possibly the jurors did at the last trial; but Frank H. Warner, of Philadelphia, for apnevertheless the defendant is entitled to have nollant

ed to have pellant. Owen J. Roberts and Howard E.

Owen, Robert his testimony as to what took place on that oc- Heckler. both of Philadelphia, for appellee. casion, together with the relevant evidence covered by the various offers which we have

POTTER, J. In the month of June, 1912, discussed, received and properly submitted to

the plaintiff, Rudolph Winter, purchased from a jury for its deliberate consideration, particu

C. J. Donnelly, Jr., a piece of real estate sitlarly on the issue as to whether at the time of

|uated at Eighteenth and Courtland streets, the killing he acted with malicious delibera- | Philadelnhia

delibera- Philadelphia. He purchased also, the saloon tion or under other mental influences which

business conducted at that place by Mr. Donmight operate either to relieve him from the

nelly, and secured a transfer of the license. charge of murder or reduce the offense to

As part of the consideration paid for the savoluntary manslaughter.

loon, he assumed payment of an indebtedness (21) Finally, since this case must be tried

of $3,000 due from Donnelly to John F. Betz again, it may not be amiss to suggest that,

& Son, Limited, the defendant. Actuated, no when witnesses, by the action of their hands

doubt, by a desire to safeguard its own inor otherwise, undertake to indicate time,

terest in the matter, the defendant firm, in space, distance, or anything else, as several

consequence of an inquiry from plaintiff, appear to have done at the last trial, counsel

placed him in communication with Donnelly, eliciting the evidence in question should be

and assisted in procuring a transfer of the careful to have an intelligible explanation

license, and in arranging for the conveyance placed upon the record, so that the testimony

of the real estate. The plaintiff complains may be understood on review; otherwise,

| that the representative of the defendant whenever the notes are not clear, we must

firm, in explaining to him the terms upon give them the interpretation which supports

which the purchase could be made, informed the verdict. Donnelly y. Lehigh Nav. Elec.

him that the premises were subject to two Co., 258 Pa. 580, 588, 589, 102 Atl. 219, and

mortgages, one of $4,000 and another of other authorities there cited.

$2,000 but did not tell him that proceedings All assignments that show rulings or in

had been instituted upon the first mortgage structions conflicting with the views here ext by which it had been reduced to judgment. pressed, together with the twenty-ninth, | It is upon what plaintiff regards as defendwhich complains of the sentence, are sustain

ant's failure to discharge a duty it owed to ed. The judgment is reversed, with a venire him in this respect that he bases his claim to facias de novo.

recover damages in this case.

We can find in the record no evidence that (261 Pa. 35)

defendant undertook to examine the title to WINTER v. JOHN F. BETZ & SON, Limited

TZ & SON, Limited the premises for the plaintiff, or to insure (Supreme Court of Pennsylvania. March 25, him against incumbrances other than those 1918.)

specifically mentioned. And, even if it had MORTGAGES 284 - ASSUMPTION OF MORT- | undertaken to do so, it is by no means clear GAGE-FAILURE TO INFORM AS TO JUDGMENT

that defendant would be entitled to any ON MORTGAGE-CAUSE OF ACTION. Plaintiff purchased a saloon property and

greater degree of accuracy than was admitbusiness, and, as part consideration, assumed tedly expressed in the statement with rethe payment of the seller's indebtedness to de

spect to the incumbrances upon the property. fendant, secured by mortgages. There was no

The lien of a mortgage is not merged in evidence that defendant, though it assisted in procuring a transfer of the license to safeguard that of a judgment upon a scire facias issued its interests, undertook to examine the title for thereon. Helmbold v. Man, 4 Whart. 410. plaintiff to insure him against incumbrances,

The lien of the first mortgage here in quesand plaintiff's attorney was present and had a report showing that the first mortgage had been

tion was no greater and no less in amount reduced to judgment. Three years thereafter after the judgment had been entered upon the property, on default in interest, was sold the scire facias than it was before. The ac. on a scire facias issued upon such judgment. Held, the defendant was not liable in damages

tual amount of the indebtedness was truly for failure to inform plaintiff that the first reported to plaintiff by defendant. True it mortgage had been reduced to judgment.

is that, after the judgment upon the scire Appeal from Court of Common Pleas, Phil. facias, an execution might promptly have adelphia County.

been issued, but that was not done in this Trespass by Rudolph Winter against John case, and upon that score plaintiff has no F. Betz & Son, Limited, for failure to in- / reason to complain. The record shows that


che real estate was conveyed to plaintiff by counsel for appellee as to whether or not the Donnelly, in a deed dated June 10, 1912, in reducing of the mortgage to judgment renwhich there was a recital that the convey- dered it more difficult to sell. Plaintiff did ance was made subject to the payment of not own the mortgage, nor was it under his two mortgages, one for $4,000, and one for control. It was not at his disposal. His ob$2,000. The first mortgage was due, accord-ligation required him to discharge the ining to its terms, in about six months from debtedness which he had assumed. If he that date, or upon November 22, 1912. But, lacked the funds to do this, the obvious proas stated above, presumably for failure to ceeding was to obtain a new loan from some pay interest, a writ of scire facias had been other source. It does not appear that he issued and prosecuted to judgment. It ap- applied to defendant for any assistance in peared, however, that when Winter took ti- any such effort; and, if he had done so, de tle to the real estate, all costs and overdue fendant was under no obligation to grant it. interest had been paid upon the judgment, In no aspect in which the plaintiff's case leaving the even sum of $4,000 due thereon. may properly be viewed are we able to disThe final settlement of the transaction was cern any merit. made at the office of defendant's attorney at The first and second assignments of error a meeting at which were present the vendor, are sustained, and the judgment is reversed, the purchaser, the attorney for the building and is here entered for the defendant. association which held the second mortgage, and the attorney for the defendant. The deed was prepared by the attorney for the

(261 Pa. 1) building association, who also procured

FLETCHER v. WILMINGTON STEAMsearches showing the incumbrances upon the

BOAT CO. title. He had the report with him which (Supreme Court of Pennsylvania. March 18, showed that the first mortgage had been re

1918.) duced to judgment. In the course of the 1. SHIPPING 166(1),NAVIGATION-FOGsettlement Mr. Winter paid this attorney for CAUTION. his services in preparing the deed, and for. Unusual caution is required of those in having it recorded, and for the cost of the charge of vessels passing through a fog. searches. There would seem to have been no 2. SHIPPING 166(5)-INJURY TO PASSENreasonable excuse for failure upon the part GER-STEAMBOAT COLLISION-QUESTION FOR of Winter to understand at that time that


In an action by a passenger upon defend. the searches showed the first mortgage had ant's steamboat for personal injury resulting been reduced to judgment. The attorney from a collision between it and a ferryboat in representing him in the settlement could

a dense fog, where there was testimony that

the master of defendant's steamboat failed to readily have made the fact plain had Winter observe the navigation rules established for shown any lack of understanding. The re boats passing in a river, held, that defendant's sponsibility for that cannot be justly placed / negligence was for the jury. upon the defendant. But, aside from any


DENCE. question as to the accuracy of the statements

In an action for personal injury, the admismade to Winter with respect to the first sion of evidence as to the present value of money mortgage, it is apparent that any loss which for different periods of expectancy based upon plaintiff may have suffered was due entirely to

contirolo total disability was not erroneous, where there

was evidence of plaintiff's earning power before to his own neglect to pay the interest upon the injury and that she was totally disabled by the indebtedness which he assumed. After the injury. meeting his obligation in this respect during 4. DAMAGES CW100PERSONAL INJURY-CONa period of two years, he defaulted in pay- / STRUCTION. ment of the interest in December, 1914, and

In such case, if plaintiff was not totally inthe owner of the mortgage then called for

capacitated for work, but was able to do light

work, the jury would consider compensation the payment of the principal. Even then an for diminution of earning power instead of conextension of six months' time was given him, templating a total loss of earning power, and it was not until the following June that the property was sold at sheriff's sale

Appeal from Court of Common Pleas, Phil. writ of levari facias issued nnon the adelphia County. judgment. We have then the fact that when

Trespass for damages for personal injury plaintiff bought the property he assumed

by Charity Fletcher against the Wilmingpayment of a mortgage which he knew he

ton Steamboat Company. Verdict for plainmight be required to pay in full at any time

tiff for $2,500 and judgment thereon, and after November 22, 1912; but, instead of

defendant appeals. Affirmed. making prompt payment of the interest due

Argued before BROWN, C. J., and STEW.

ART, MOSCHZISKER, FRAZER, and in December, 1914, and gaining thereby a continued indefinite extension of time for WALLING, JJ. the payment of the principal, he defaulted Francis S. Laws, of Philadelphia, for apand brought upon himself the foreclosure. pellant. Victor Frey and Augustus Trask

It is idle to discuss the question raised by | Ashton, both of Philadelphia, for appellee. . BROWN, C. J. On the morning of Au- general regulation requiring each passing gust 27, 1916, the appellee was a passenger boat to keep to the right, provides: on a steamboat belonging to the defendant "But if the courses of such vessels are so company, which started from Philadelphia

far on the starboard of each other as not to be

considered as meeting head and head, either for Wilmington, Del. Shortly after it left

vessel shall immediately give two short and disthe wharf, when it reached a point in the tinct blasts of her whistle, which the other vesDelaware river at or near Mimin street, it sel shall answer promptly by two similar blasts

of her whistle, and they shall pass on the starcollided with a ferryboat which was neither

board side of each other. The foregoing only owned nor operated by the defendant. At applies to cases where vessels are meeting end the time of the collision the appellee was

on or nearly end on, in such a manner as to in

| volve risk of collision," sitting on a camp stool on one of the decks

The captain of the ferryboat further tesof the boat. The collision threw her over or across the chair or stool on which she

tified that his boat was in the position copwas sitting, and this action was brought

ered by this rule; that he gave the signals

provided for by it; that he received no an. for the recovery of damages for the injuries

swer; that he then stopped his engines and she sustained. From the judgment on the verdict in her favor the defendant has ap

gave the danger signal and started his boat

backward; and that there was sufficient navipealed.

gable water on the right side of his boat [1, 2] The question of the defendant's neg

for the steamboat to pass him. Instead of ligence as the cause of the collision was sub

passing him on the right or starboard side, mitted to the jury in a charge of which

as the signal from the ferryboat indicated no complaint is made in any of the assign

to it that it should, it did not vary its course, ments of error. The defendant offered no

and struck the ferryboat on the port side testimony. At the close of plaintiff's case

with great force. it asked that a verdict be directed in its

Unusual caution is required of those in favor, on the ground that nothing disclosed

charge of vessels passing through a fog in the evidence submitted by the plaintiff

(The Bailey Gatzert [D. C.] 170 Fed. 101; showed negligence on its part. The refusal

| The Virginia [D. C.] 203 Fed. 351); and in of this request and the overruling of the

view of the testimony of the captain of the motion for judgment non obstante veredicto

ferryboat the question of the negligence of constitute one of the two complaints of the

those in charge of the steamboat could not appellant. In support of this complaint it

have been taken from the jury. It was subis urged that the rules for the government

mitted to them under the following correct of the movement of vessels when approach. instruction: ing each other, which were offered in evi. "Did he (the captain of the ferryboat] give dence by the plaintiff, were being strictly these signals as he testifies, and did the City of observed by the defendant at the time of

Chester negligently, under its high measure of

duty to its passengers, fail to observe them, the collision, and it was not, therefore, thereby violating the rule of navigation, and as guilty of negligence in colliding with the a consequence by its negligence bring about the ferryboat. This overlooks the testimony of collision? The first point submitted by coun

sel for the defendant states the defendant's pothe captain of that boat, and it was upon | sition here so accurately as to the law that I his testimony that the case went to the will incorporate it in my general charge, and inJury. He testified as to the movements of struct you at this point that, if you believe bis boat coming up the Delaware from

that the steamer City of Chester was proceeding

down the Delaware river on the 27th day of Gloucester, and stated that, when he reached August, 1916, upon her proper course and in a a point opposite Mifflin street, he entered a proper manner, that she was in charge of combank of fog; that he ran his boat at about

petent and skillful navigators, and was being

operated and navigated in a careful, competent, 4 miles an hour, blowing his foghorn; that and skillful manner, and that without fault he heard the foghorn of a boat coming to on her part or those in charge of her she was wards him in the fog; that he was running

no run into by another boat over which neither

the defendant nor its employés had any control, close to the Pennsylvania shore, because of then the defendant was not responsible for any some obstructions in the river which he injury resulting to the plaintiff, and your verdict wished to avoid; that after he had got in

must be for the defendant. That is correct,

gentlemen of the jury, and I so instruct you. to the fog he saw ahead of him, and coming

If, however, the employés of the defendant comin his immediate direction, the steamboat pany were at all negligent, if they failed to of the, defendant, between 400 and 500 feet

recognize the signals of the captain of the

Dauntless, if you believe that he actually did up the river from him; that he immediately give them, if by the exercise of the high degree blew two whistles, - which meant that the of care imposed upon them as common carriers steamboat was to pass him on the left side.

they could have stopped the City of Chester or

have done anything else to have avoided the colAccording to his testimony, the rule of the lision, then it was their duty to have done so, river as to the passing of one boat by an- and if they failed in that duty, then they were other is the same as the rule of the road,

negligent, and their negligence would impose lia

bility upon the defendant company for any injuand ordinarily boats keep to the right in ries suffered by the plaintiff as a result of their passing. There is, however, an exception to negligence." this, according to rule 1, article XVIII, of the sixth and seventh assignments of er

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[3, 4] The first, second, third, fourth, and not be reversed, without a clear abuse of discrefifth assignments complain of the court's ad

wurtis ad. tion. mission of evidence of the present value Appeal from Court of Common Pleas, Philof money for different periods of expectan- adelphia County. cy based upon total disability. It appear Action by Anna M. Somerville against ed from the testimony that before the plain Thomas D. Hill. From an order discharge tift was injured she had an earning ca- | ing a rule to show cause why a sheriff's sale pacity of from $6 to $7 per week, and if of real estate should not be set aside, Gerald there was evidence from which the jury F. Miller appeals. Affirmed. could fairly find that she was totally dis- / Argued before POTTER, STEWART, abled by the injuries she sustained, the first MOSCHZISKER, FRAZER, and WALLING, five assignments of error are without merit. JJ. The jury could fairly have found from the Graham C. Woodward, of Philadelphia, testimony of the plaintiff herself, and from for appellant. Francis V. Godfrey, of Phil. that of two of the three physicians called, adelphia, for appellee. that her injuries were permanent, totally depriving her of earning capacity. From the FRAZER, J. (1) Gerald F. Miller, as peamount of the verdict returned, in view of titioner, appeals from the action of the court the expectancy of the plaintiff's life, the below in discharging a rule to show cause jury manifestly did not find that she was why he should not be permitted to intervene totally disabled. In submitting the question | as a party defendant, and why a sheriff's of her total disability to the jury, the learn sale of real property should not be set aside ed trial judge correctly charged as follows: because of the misdescription of the premis

"If, however, you do not believe that she is es in the sheriff's advertisement, and the mistotally incapacitated for work, but find as a leading announcement at the sale, alleged fact, as her one physician tells you, that she is

to have resulted in an inadequate price benow able to do light work, then you will consider compensation to her, instead of contemplating total loss of earning power, simply a Appellant averred he was the real and reg. diminution or lessening of earning power."

istered owner of the premises in question. The first five assignments of error are

That he was the registered owner is admitalso dismissed, and the judgment is affirmed. ted in the answer; it is denied, however, he

was the real owner, and the evidence shows (260 Pa, 477)

he was merely the holder of the legal title SOMERVILLE v. HILL.

on behalf of his father, who was one of the

executors and trustees under the will of Appeal of MILLER.

Peter J. Tieman, to whom the property had (Supreme Court of Pennsylvania, March 11, been devised in trust. A mortgage covering 1918.)

the premises at the death of Tieman had 1. EXECUTION 247—SHERIFF'S SALE-RULE previously been foreclosed, and the property TO SET ASIDE-DISCHARGE. .

bought by Hill, the defendant, who executed On a rule to show cause why a sheriff's sale of realty should not be set aside, it appeared a new mortgage to plaintiff, upon which the that petitioner was the holder of the legal title, present proceedings were begun to enforce subject to the control of trustees; that previous payment. After title was taken, and the to the sale the trustees petitioned for a stay of the writ, and, before being advised of the dis

mortgage executed by Hill, the property charge of the rule the sheriff announced that the was, for some reason not made clear, transproperty would not be sold; and that when sub- ferred to appellant, to hold, as stated by his sequently notified of the court's action, and on counsel. “upon the trusts contained in Peter request of counsel for the parties in execution, he sold the property, the attorney representing 3.

J. Tieman's will," for which estate appelthe trustees in the petition to stay the sale bid- lant's father, David J. Miller, was a trusding on the property, though not for the trustees, tee. and making no protest against the sale, and that

From the foregoing statement of facts it petitioner did not complain in their behalf, but on his own behalf, as the real and registered seems the interest of appellant in the propowner, though he did not offer to bid or secure erty was as holder of the legal title, subject a purchaser at a higher price. Held, that the to the direction and control of the trustees. rule was properly discharged.

one of them his father, Previous to the sale 2. EXECUTION 249 - SHERIFF'S SALE - DESCRIPTION OF PROPERTY.

the trustees presented a petition to the That the description of property advertised court below, asking that the writ be stayed by a sheriff for sale contained a technical mis-pending the determination of certain litigastatement of the street numbers was not such an tion in the orphans' court, which petition irregularity as would justify the setting aside of the sale, where the premises were otherwise

the court dismissed on the morning of the properly described.

sale. The sheriff, having received notice 3. APPEAL AND ERROR 983(3) - SETTING of the application to stay the sale, immedi

ASIDE SHERIFF'S SALE – DISCRETION OF ately before beginning the sales of the va-
The setting aside or refusing to set aside a

rious properties, and before being advised sheriff's sale on execution is in the sound dis- of the discharge of the rule by the court, cretion of the court below, and its decree will announced the property in question would

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