man, however, refused to testify unless all other Italians were removed from the room, claiming he was afraid vengeance would be visited upon him if his testimony were heard | by them. Upon objection from the district attorney the trial judge said: "The court is of opinion that it does not have the power to grant the application; therefore the objection to so doing is sustained." A request of this character is within the discretion of the trial judge, and had the court below, in the exercise of its discretion, refused the one at bar, we would be loath to characterize such a ruling as reversible error; but clearly in the present instance the judge was wrong in ruling that he had no power to grant the application. Archbold's Criminal Practice & Pleading (8th Ed.) vol. 1, p. 539, n. 1; Bishop's New Criminal Procedure, vol. 1. §§ 1188-1190; 12 Cyc. 546. [12] During the course of the trial certain character witnesses admitted on amination that two or three years prior thereto they had heard Principatti accused of killing another man; but in that connection the district attorney admitted that "the grand jury ignored the bill against the defendant." It is alleged the representative of the commonwealth, in summing up, said to the jury: cross-ex That "three years before the defendant, Dominic Principatti, had in cold blood killed a man, that it is true the grand jury disregarded the bill, and that unfortunately the district attorney was a party thereto." If made, these remarks were highly improp er; there being no testimony in the case that defendant had "in cold blood killed a man," or that the bill relating to the alleged crime had been ignored at the instance of the district attorney. We take it for granted, however, that no such mistake will occur at the next trial; hence it is unnecessary fur ther to discuss the matter. [13, 14] Several of the assignments criticize the charge upon the ground that it either omits all reference to or contains no sufficient instructions upon the various important matters which came before the jury at trial. We shall briefly refer to such of these as we deem material. The trial judge said nothing about the threats which Amodeo is alleged to have made against the defendant, or their possible effect upon the mind of the latter; further, he did not, in his general charge, sufficiently refer to or discuss the evidence as to the dangerous character of the deceased, nor did he point out its bearing upon the defense set up by the accused. Although these omissions are possibly corrected by the affirmance of certain of the latter's requests, at the next trial all such material matters should be specifically referred to in the body of the charge. Moreover, at that time the trial judge should be careful not only to state all appropriate rules of law, but to point out their relevancy with sufficient explicitness to enable the as it may find the latter to be. Com. v. Smith, 221 Pa. 552, 553, 70 Atl. 850; Meyers v. Com., 83 Pa. 131, 143, Paxson, J.; Com. v. Colandro, 231 Pa. 343, 356, 80 Atl. 571. [15, 16] In this connection it is particularly important that the learned court below should not overlook the relevant rules of law and distinctions to be kept in mind when considering the case from the aspects of self-defense and manslaughter, respectively, as pointed out in Com. v. Colandro, supra; and, if the fact that the defendant had been accused of killing another man is again brought forward in the same way as at the last trial, the jury should be instructed as to the relevancy of the testimony upon that subject, and that inquiry concerning the matter is permitted only for the limited purpose of "ascertaining the opportunities, sources, and extent of the knowledge of the respective witnesses on the point of the general reputation of the defendant, and not to show that defendant was probably guilty of the other offenses." Com. v. Colandro, supra, 231 Pa. at page 355, 80 Atl. at page 575. [17] It appears that Principatti's face is badly scarred on both sides, and that these ugly blemishes are plainly visible. Counsel for defendant, fearing that, through a misunderstanding as to the source of his client's disfigurement, the jury might become prejudiced against the latter, offered to show that this came about through no fault of his own. To enter upon such an investigation might lead to collateral issues that would seriously confuse a trial; hence we cannot say error was committed in the refusal of the present offer. [18] The accused tendered in evidence an anonymous letter received by him on May 1, 1916, almost a year before the killing, which he claimed to be a "Black Hand" communication. We have read the epistle in question, and, considering its remoteness from the day of the crime and the lack of any evidence to connect the deceased therewith, we cannot say that its exclusion was error. [19] The fact that Principatti surrendered himself and gave up his pistol to an officer of the law within an hour after the shooting, was put in evidence; but the trial judge did not err in refusing to permit the defendant to be interrogated, or in declining to let in other evidence concerning his self-serving declara tions at that time. [20] There are 29 assignments, covering more than 30 printed pages. We do not deem it necessary specifically to refer to each of these, but have sufficiently reviewed those of importance. Many of them, standing alone, do not show reversible error; but several do, and together they present a clear case of mistrial. Were the matters of complaint all of a minor character, we would be disinclined, considering the evidence against the accused, to set aside the present judgment; but so much harmful error is called to our attention that, if the right to due and lawful trial is to form plaintiff that a first mortgage on premises purchased from a third party had been reduced to judgment. Verdict for plaintiff for $2,600, and defendant appeals. Reversed, and judgment entered for defendant. Argued before POTTER, STEWART, FRAZER, and WAL The defendant may not be able to substantiate his various offers of proof, or the jurors may disbelieve the testimony with reference thereto, if produced, or, if believed, they may not draw the inferences or conclusions therefrom that he contends for, in fact, they may entirely discredit his version of Amodeo's ac- MOSCHZISKER, tions immediately before the shooting, as LING, JJ. possibly the jurors did at the last trial; but nevertheless the defendant is entitled to have his testimony as to what took place on that occasion, 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- 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 give them the interpretation which supports the verdict. Donnelly v. Lehigh Nav. Elec. Co., 258 Pa. 580, 588, 589, 102 Atl. 219, and Frank H. Warner, of Philadelphia, for appellant. Owen J. Roberts and Howard E. Heckler, both of Philadelphia, for appellee. other authorities there cited. All assignments that show rulings or instructions conflicting with the views here expressed, together with the twenty-ninth, which complains of the sentence, are sustained. The judgment is reversed, with a venire facias de novo. (261 Pa. 35) WINTER v. JOHN F. BETZ & SON, Limited MORTGAGES 284-ASSUMPTION OF MORT- firm, in explaining to him the terms upon which the purchase could be made, informed him that the premises were subject to two mortgages, one of $4,000 and another of $2,000 but did not tell him that proceedings had been instituted upon the first mortgage by which it had been reduced to judgment. It is upon what plaintiff regards as defendant's failure to discharge a duty it owed to him in this respect that he bases his claim to recover damages in this case. We can find in the record no evidence that defendant undertook to examine the title to the premises for the plaintiff, or to insure him against incumbrances other than those specifically mentioned. And, even if it had undertaken to do so, it is by no means clear that defendant would be entitled to any greater degree of accuracy than was admittedly expressed in the statement with respect to the incumbrances upon the property. The lien of a mortgage is not merged in that of a judgment upon a scire facias issued thereon. Plaintiff purchased a saloon property and business, and, as part consideration, assumed the payment of the seller's indebtedness to defendant, secured by mortgages. There was no evidence that defendant, though it assisted in procuring a transfer of the license to safeguard its interests, undertook to examine the title for 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 acon a scire facias issued upon such judgment. Held, the defendant was not liable in damages for failure to inform plaintiff that the first mortgage had been reduced to judgment. Appeal from Court of Common Pleas, Philadelphia County. Trespass by Rudolph Winter against John F. Betz & Son, Limited, for failure to in tual amount of the indebtedness was truly reported to plaintiff by defendant. True it is that, after the judgment upon the scire facias, an execution might promptly have been issued, but that was not done in this case, and upon that score plaintiff has no reason to complain. The record shows that The first and second assignments of error are sustained, and the judgment is reversed, and is here entered for the defendant. (261 Pa. 1) FLETCHER v. WILMINGTON STEAMBOAT CO. the 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, detle 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 a meeting at which were present the vendor, the purchaser, the attorney for the building association which held the second mortgage, and the attorney for the defendant. The deed was prepared by the attorney for the building association, who also procured searches showing the incumbrances upon the title. He had the report with him which (Supreme Court of Pennsylvania. March 18, showed that the first mortgage had been reduced to judgment. In the course of the settlement Mr. Winter paid this attorney for his services in preparing the deed, and for having it recorded, and for the cost of the searches. There would seem to have been no reasonable excuse for failure upon the part of Winter to understand at that time that the searches showed the first mortgage had been reduced to judgment. The attorney representing him in the settlement could readily have made the fact plain had Winter shown any lack of understanding. The responsibility for that cannot be justly placed upon the defendant. But, aside from any question as to the accuracy of the statements made to Winter with respect to the first mortgage, it is apparent that any loss which plaintiff may have suffered was due entirely to his own neglect to pay the interest upon the indebtedness which he assumed. After meeting his obligation in this respect during a period of two years, he defaulted in pay ment of the interest in December, 1914, and the owner of the mortgage then called for the payment of the principal. Even then an extension of six months' time was given him, and it was not until the following June that the property was sold at sheriff's sale upon a writ of levari facias issued upon the judgment. We have then the fact that when plaintiff bought the property he assumed payment of a mortgage which he knew he might be required to pay in full at any time 1. SHIPPING 1918.) 166(1)-NAVIGATION-FOG Unusual caution is required of those in charge of vessels passing through a fog. 2. SHIPPING 166(5)—INJURY TO PASSENGER-STEAMBOAT COLLISION-QUESTION FOR JURY. In an action by a passenger upon defendant's steamboat for personal injury resulting from a collision between it and a ferryboat in a dense fog, where there was testimony that the master of defendant's steamboat failed to observe the navigation rules established for boats passing in a river, held, that defendant's negligence was for the jury. 3. DAMAGES 167-PERSONAL INJURY-EVI DENCE. In an action for personal injury, the admission of evidence as to the present value of money for different periods of expectancy based upon total disability was not erroneous, where there was evidence of plaintiff's earning power before the injury and that she was totally disabled by the injury. 4. DAMAGES 100-PERSONAL INJURY-CON STRUCTION. capacitated for work, but was able to do light In such case, if plaintiff was not totally inwork, the jury would consider compensation for diminution of earning power instead of contemplating a total loss of earning power. Appeal from Court of Common Pleas, Philadelphia County. Trespass for damages for personal injury by Charity Fletcher against the Wilmington Steamboat Company. Verdict for plaintiff for $2,500 and judgment thereon, and defendant appeals. Affirmed. Argued before BROWN, C. J., and STEWᎪᎡᎢ, MOSCHZISKER, FRAZER, and WALLING, JJ. after November 22, 1912; but, instead of making prompt payment of the interest due in December, 1914, and gaining thereby a continued indefinite extension of time for the payment of the principal, he defaulted Francis S. Laws, of Philadelphia, for ap and 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 company, which started from Philadelphia for Wilmington, Del. Shortly after it left the wharf, when it reached a point in the Delaware river at or near Mifflin street, it collided with a ferryboat which was neither owned nor operated by the defendant. At the time of the collision the appellee was sitting on a camp stool on one of the decks of the boat. The collision threw her over or across the chair or stool on which she was sitting, and this action was brought for the recovery of damages for the injuries she sustained. From the judgment on the verdict in her favor the defendant has ap "But if the courses of such vessels are so far on the starboard of each other as not to be vessel shall immediately give two short and disconsidered as meeting head and head, either tinct blasts of her whistle, which the other vessel shall answer promptly by two similar blasts board side of each other. The foregoing only of her whistle, and they shall pass on the starapplies to cases where vessels are meeting end on or nearly end on, in such a manner as to involve risk of collision." pealed. [1, 2] The question of the defendant's neg ligence as the cause of the collision was submitted to the jury in a charge of which no complaint is made in any of the assign ments of error. The defendant offered no testimony. At the close of plaintiff's case it asked that a verdict be directed in its The captain of the ferryboat further testified that his boat was in the position covered by this rule; that he gave the signals provided for by it; that he received no answer; that he then stopped his engines and backward; and that there was sufficient navigave the danger signal and started his boat for the steamboat to pass him. Instead of gable water on the right side of his boat passing him on the right or starboard side. as the signal from the ferryboat indicated to it that it should, it did not vary its course, and struck the ferryboat on the port side with great force. Unusual caution is required of those in charge of vessels passing through a fog (The Bailey Gatzert [D. C.] 170 Fed. 101; The Virginia [D. C.] 203 Fed. 351); and in view of the testimony of the captain of the ferryboat the question of the negligence of those in charge of the steamboat could not have been taken from the jury. It was submitted to them under the following correct favor, on the ground that nothing disclosed "Did he [the captain of the ferryboat] give these signals as he testifies, and did the City of Chester negligently, under its high measure of duty to its passengers, fail to observe them, thereby violating the rule of navigation, and as a consequence by its negligence bring about the sel for the defendant states the defendant's pocollision? The first point submitted by counsition here so accurately as to the law that I will incorporate it in my general charge, and instruct you at this point that, if you believe that the steamer City of Chester was proceeding down the Delaware river on the 27th day of August, 1916, upon her proper course and in a proper manner, that she was in charge of competent and skillful navigators, and was being operated and navigated in a careful, competent, and skillful manner, and that without fault on her part or those in charge of her she was the defendant nor its employés had any control, run into by another boat over which neither then the defendant was not responsible for any injury resulting to the plaintiff, and your verdict must be for the defendant. That is correct, gentlemen of the jury, and I so instruct you. If, however, the employés of the defendant company were at all negligent, if they failed to recognize the signals of the captain of the Dauntless, if you believe that he actually did give them, if by the exercise of the high degree of care imposed upon them as common carriers they could have stopped the City of Chester or have done anything else to have avoided the collision, then it was their duty to have done so, and if they failed in that duty, then they were negligent, and their negligence would impose liability upon the defendant company for any injuries suffered by the plaintiff as a result of their negligence." The sixth and seventh assignments of er JJ. Argued before POTTER, STEWART, Graham C. Woodward, of Philadelphia, for appellant. Francis V. Godfrey, of Phil [3, 4] The first, second, third, fourth, and not be reversed, without a clear abuse of discrefifth assignments complain of the court's 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 dischargtiff 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 disabled by the injuries she sustained, the first MOSCHZISKER, FRAZER, and WALLING, five assignments of error are without merit. The jury could fairly have found from the testimony of the plaintiff herself, and from that of two of the three physicians called, that her injuries were permanent, totally depriving her of earning capacity. From the amount of the verdict returned, in view of the expectancy of the plaintiff's life, the jury manifestly did not find that she was totally disabled. In submitting the question of her total disability to the jury, the learned trial judge correctly charged as follows: "If, however, you do not believe that she is totally incapacitated for work, but find as a fact, as her one physician tells you, that she is now able to do light work, then you will consider compensation to her, instead of contemplating total loss of earning power, simply a diminution or lessening of earning power." The first five assignments of error are also dismissed, and the judgment is affirmed. (260 Pa. 477) SOMERVILLE v. HILL. (Supreme Court of Pennsylvania. 1918.) adelphia, for appellee. FRAZER, J. [1] Gerald F. Miller, as petitioner, appeals from the action of the court below in discharging a rule to show cause why he should not be permitted to intervene as a party defendant, and why a sheriff's sale of real property should not be set aside because of the misdescription of the premises in the sheriff's advertisement, and the misleading announcement at the sale, alleged to have resulted in an inadequate price being received for the property. Appellant averred he was the real and registered owner of the premises in question. That he was the registered owner is admitted in the answer; it is denied, however, he was the real owner, and the evidence shows he was merely the holder of the legal title on behalf of his father, who was one of the executors and trustees under the will of Peter J. Tieman, to whom the property had March 11, been devised in trust. A mortgage covering the premises at the death of Tieman had previously been foreclosed, and the property bought by Hill, the defendant, who executed a new mortgage to plaintiff, upon which the present proceedings were begun to enforce payment. 1. EXECUTION 247-SHERIFF'S SALE-RULE TO SET ASIDE-DISCHARGE. On a rule to show cause why a sheriff's sale of realty should not be set aside, it appeared that petitioner was the holder of the legal title, subject to the control of trustees; that previous to the sale the trustees petitioned for a stay of the writ, and, before being advised of the discharge of the rule the sheriff announced that the property would not be sold; and that when subsequently notified of the court's action, and on request of counsel for the parties in execution, he sold the property, the attorney representing the trustees in the petition to stay the sale bidding on the property, though not for the trustees, and making no protest against the sale, and that petitioner did not complain in their behalf, but on his own behalf, as the real and registered owner, though he did not offer to bid or secure a purchaser at a higher price. Held, that the rule was properly discharged. 2. EXECUTION 249- SHERIFF'S SALE - DESCRIPTION OF PROPERTY. After title was taken, and the mortgage executed by Hill, the property was, for some reason not made clear, transferred to appellant, to hold, as stated by his counsel, "upon the trusts contained in Peter J. Tieman's will," for which estate appellant's father, David J. Miller, was a trustee. From the foregoing statement of facts it seems the interest of appellant in the property was as holder of the legal title, subject to the direction and control of the trustees, one of them his father. Previous to the sale the trustees presented a petition to the court below, asking that the writ be stayed pending the determination of certain litigation in the orphans' court, which petition the court dismissed on the morning of the sale. The sheriff, having received notice SETTING of the application to stay the sale, immediDISCRETION OF ately before beginning the sales of the various properties, and before being advised of the discharge of the rule by the court, announced the property in question would That the description of property advertised by a sheriff for sale contained a technical misstatement of the street numbers was not such an irregularity as would justify the setting aside of the sale, where the premises were otherwise properly described. 3. APPEAL AND ERROR 983(3) The setting aside or refusing to set aside a sheriff's sale on execution is in the sound discretion of the court below, and its decree will |