so if it had hired the vehicles for the transportation by the month or year. It did not receive any part of the sum paid to it by its customers as the agent of the railroad companies, but all of its gross receipts were for services rendered by it. We think the fact that the taxation here imposed does not come within the provisos referred to above tends strongly to show that the legislature intended the whole of defendant's gross receipts to be taxed. We must assume that the provisos express the full in tention of the legislature, and that, if it had intended any further limitation of the letter of the acts, it would have so said. The reason for the provisos as they stand can be readily seen. The company owning a railroad, which it has leased to another, is not with respect to such railroad engaged in business, and does not receive from its railroad any gross receipts, but only net income. We are clearly of the opinion that the tax charged in the settlement appealed from in this case is not in any proper sense of the term 'double taxation,' and that, therefore, the second specification cannot be sustained.

"Conclusions of Law.

"1. Defendant is not exempted from taxation on any part of its gross receipts, taxed in the settlement appealed from, under the facts of this case, by the provisos to section 7, Act June 7, 1879, and section 23, Act June 1. 1889.

"2. The taxation of all defendant's gross receipts under the facts of this case is not illegal double taxation.

"3. The settlement appealed from in this case is legal and valid."

J. H. Barnes, for appellant.

STERRETT, C. J. An examination of the record in this case has fully convinced us that there is nothing, either in the learned trial judge's findings of fact, or in the legal conclusions drawn therefrom, of which the defendant has any just reason to complain. The company's gross receipts from its express business transacted wholly within the state, during the period included in the settlement appealed from, appears to have aggregated $437,657.81. During the same period, considerable sums were paid by it to railroad companies for transporting its express matter. Some of said companies were paid a fixed sum per annum for all transportation services, others were paid a fixed rate per hundred pounds of express matter carried for defendant, and others were paid a sum equal to an agreed percentage of defendant's gross receipts from its express business done on their respective roads. All the railroad companies carried express goods for defendant, and were compensated for that service in one or other of the modes mentioned, have paid all the taxes which accrued in respect of their own individual gross earnings, includ

that

*

* * *

*

ing the amounts paid them, respectively, by defendant company. On these undisputed facts, the company defendant contends that it is taxable only on so much of its gross receipts as remains after deducting therefrom the amounts paid as aforesaid to other companies for transportation services. If the acts of June 7, 1879, and June 1, 1889, under which the tax in controversy is claimed, contemplated a tax on net receipts, this contention should prevail. But they do not. On the contrary, they expressly declare "that * * every express company incorporated or unincorporated, doing business in this commonwealth shall pay to the state treasurer a tax of eight mills upon the dollar upon the gross receipts of said company received from express business done wholly within this state." The tax is thus laid, not upon net earnings or upon gross earnings, less the amount paid other companies for transportation services, but upon the entire gross receipts of the defendant's express business done wholly within this commonwealth. As construed in Philadelphia & R. R. Co. v. Com., 104 Pa. St. 82, the term "gross receipts," has been construed as equivalent to "gross increase" or "gross earnings." The defendant might, with almost equal propriety, claim the right to deduct office expenses and cost of local delivery service. As has been clearly shown by the learned president of the common pleas, the provisos in section 7 of the act of June 7, 1879, and section 23 of the act of June 1, 1889, providing for adjustment of tax between corporations in certain cases, have no application to the facts of this case. Neither of defendant's agreements with other companies for transportation services brings it within the terms of said provisos. The court was also right in holding that, under the facts in this case, the taxation of the whole of said gross receipts is not illegal double taxation. find nothing in either of the specifications of error that calls for reversal or modification of the judgment. Judgment affirmed.

MCCOLLUM, J., not present.

We

(157 Pa. St. 98)

Oct. 2,

In re MULLIGAN'S ESTATE. Appeal of CATTELL. (Supreme Court of Pennsylvania. 1893.) ASSIGNMENT FOR BENEFIT OF CREDITORS-COMMISSIONS AS EXECUTOR.

An assignment for benefit of creditors, of the goods, chattels, and property of the assignor, does not pass to the assignee a claim of the assignor against a decedent's estate for commissions as executor.

Appeal from orphans' court, Philadelphia county; Jos. C. Ferguson, Judge.

Accounting by James Mulligan, Jr., as executor of the will of James Mulligan. Henry S. Cattell, as assignee for benefit of creditors,

asserted a claim to said Mulligan's commissions as executor. The claim was disallowed, and Cattell appeals. Affirmed.

Peter Boyd, for appellant. Joseph P. McCullen and Patrick Duffy, for appellee.

MCCOLLUM, J. The testator, after directing that his funeral expenses should be promptly paid, and that $1,000 should be expended for masses for the repose of his soul, bequeathed unto the St. John's Orphan Asylum, St. Vincent's Home, and the Catholic Home, Eighteenth and Race streets, each the sum of $500. To his wife, Elizabeth, he bequeathed one-third of the balance of his personal estate absolutely, and the net income of one-third of his real estate during her natural life. To his son, James, he bequeathed his entire business then "conducted and carried on" by him in the city of Philadelphia and in the state of New Jersey, and all his rights, title, and interests in any firm or business with which he was connected in said city or elsewhere, "under and subject, however, to the above devise" to his wife. He then devised and bequeathed the residue of his estate to his son, James, and his daughter, Rose, their heirs and assigns, “in equal parts, share and share alike," and appointed his son, James, sole executor of his will. We agree with the learned auditing judge that under this will the testator's daughter, Rose, is not entitled to share in the business bequeathed to her brother, James, or the proceeds arising from a sale by him of the testator's interests therein. We think, also, that the personal property not specifically bequeathed is primarily liable for the debts, and that, under the residuary clause of the will, James and Rose can only take what remains after such debts and the general legacies are paid, and their mother has received the share of the personal estate bequeathed to her. 2 Williams, Ex'rs, 1360; Nichols v. Postlethwaite, 2 Dall. 131; Tucker v. Hassenclever, 3 Yeates, 294; McGlaughlin v. McGlaughlin, 24 Pa. St. 20. It is agreed by all the parties interested that the amount of the personal estate, exclusive of the business interests specifically bequeathed to James, is but $8,607.58, and it appears that the sum of the debt and legacies chargeable against it is $9,094.58. It is manifest, therefore, that there is no balance for division under the residuary clause, and that five-sixths of the fund for distribution represents proceeds of the business interests bequeathed to James.

We agree with the learned orphans' court that the appellant, as assignee for the benefit of creditors, is not entitled to commissions on the estate administered by his assignor. It was decided in Adams' Appeal, 47 Pa. St. 94, that the commissions of an executor were not attachable in his own hands, or in the hands of his coexecutor, and the decision was placed distinctly upon the grounds that

the policy of the law and the interests of the estate demanded that such commissions should be exempt from attachment. In delivering the opinion of the court, Agnew, J., said: "It would be incalculably mischievous if the interests of estates and of legatees and distributees were to be retarded and inperiled by the attacks of creditors upon the accounts of the executors or administrators in order to reach the commissions. It would make the main interests of the estate subservient to collateral claims, and its effect would be to diminish the interests of the executors or administrators in making speedy and effectual efforts to settle the estate by taking away their compensation." This commission is unlike a legacy or distributive share, which, by virtue of the act of July 27, 1842, (P. L. 436,) may be attached before any settlement of the estate. It is not in any seuso an interest in the estate, and there is no fixed standard by which it can be measured. Whether it shall be allowed or refused is a question which usually arises on the claim of the executor or administrator on final settlement, and is affected by various circumstances and considerations not applicable to the claim of the heir or legatee. It is true, as contended by the appellant, that some things are assignable which are not attachable; as, for instance, a policy of life insurance, which, although payable to the legal representatives of the assured, may be assigned, but cannot be attached, during his life. Day v. Insurance Co., 111 Pa. St. 507, 4 Atl. Rep. 748. If, however, an assignment by a debtor of "all his goods, chattels, and property" for the benefit of his creditors includes a claim for commissions on the unsettled estate of a decedent, and enables the creditors, through their trustee, to intervene in the settlement of his accounts as executor, it would seem to be open to the objections which were deemed fatal to the proceedings in Adams' Appeal, supra. It is the intervention of the creditors of the executor for the purpose of appropriating compensation for his services that is objectionable, and, speaking for myself, against the policy of the law. It matters not to the estate or the parties in interest therein whether such intervention is founded upon an assignment for the benefit of creditors or upon an attachment. In either case it "makes the main interests of the estate subservient to collateral claims," and constitutes an obstruction to the due and orderly execution of the trust. But we do not rest our refusal to award to the appellant commissions on the estate of the decedent on the bare ground that a claim for them is not assignable for the benefit of creditors. In this case there is nothing on the record which shows that the executor claimed, or intended to claim, commissions, or that they were earned before the assignment. He did not expressly include them in his assignment,

and he was not bound to claim them for himself or his creditors. The bulk of the estate administered was connected with, and applicable to, the debts of the business bequeathed to him. After deducting the general legacies from the fund for distribution, he is, under the will, entitled to two-thirds of the balance, and his mother is entitled to one-third of it. In the absence of evidence that he claimed commissions by including them in his assignment, or otherwise, and in presence of his refusal to claim them, it is reasonable to conclude that he did not at any time intend to appropriate one-third of her share as compensation for his services in the settlement of the estate. His action in this respect cannot, under the circumstances, be regarded as fraudulent or unjust. We hold, therefore, that the appellant did not, by the conveyance to him of the goods, chattels, and property of the executor, acquire a right to commissions on the estate of the decedent. In conformity with the foregoing views, the first specification of error is sustained, and the second specification is overruled. The order awarding to Rose F. Cooney $3,246.55 is reversed; $6,493.55, being two-thirds of the balance for distribution after deducting legacies, is awarded to Henry S. Cattell, assignee of James Mulligan, Jr.; and the decree of the orphans' court, so modified, is affirmed, at the costs of the appellee.

(157 Pa. St. 231)

BRADBURY v. KINGSTON COAL CO. (Supreme Court of Pennsylvania. Oct. 2, 1893.)

MASTER AND SERVANT-DEFECTIVE MACHINERY.

In an action for injuries causing the death of an employe, it appeared that, while defendant's engineer was lowering into the mine a cage containing decedent and other workmen, a cotter pin broke, whereby the engineer lost control of the throttle. He then undertook to stop the engine by means of the reverse lever, but he accidentally pulled the lever too far, and reversed the engine, instead of stopping it. Deceased attempted to jump on a landing as the cage moved past it, and was killed. The other men remained in the cage, and were not injured. The cotter pin was of the kind in general use, and had been duly inspected, but no defect was discovered, though it had been in use for seven years. similar pin on the same engine was without defect at the time of the trial, after 11 years' use. Held, that the accident was not caused by defective machinery. Sterrett, C. J., dissenting.

A

Appeal from court of common pleas, Luzerne county; C. E. Rice, Judge.

Action by Rowena Bradbury against the Kingston Coal Company for alleged negligence causing the death of William Bradbury, plaintiff's husband. There was a judgment in favor of plaintiff, and defendant appeals. Reversed.

H. W. Palmer, for appellant. Edward A. Lynch and William H. Hines, for appellee.

GREEN, J.

The plaintiff's husband lost his life by falling down the vertical shaft of a coal mine operated by the defendant. The manner and occasion of his fall were thus: He and two others, all of them workmen in the employ of the defendant, stepped upon the cage used for the purpose of lowering the men to the mine. When they had descended a few feet, the engineer at the mouth of the shaft, discovering that he had lost control of the throttle valve, undertook to stop, and did stop, the further descent of the cage. In order to do this he pulled the reverse lever for the purpose of shutting off the steam, so that the large drum which held the descending rope attached to the cage would stop. To do this successfully he should only have pulled the reversing lever to the center notch in the ratchet, and at that point the steam would have been shut off which 'caused the drum to revolve, and thereupon it would stop running; but unfortunately he pulled the lever, without intending to do so, a little past the center notch, and this opened the way for the steam to enter the opposite end of the steam chest, and the effect of that was to produce a reverse motion of the drum, which started the cage upwards. The engineer, who was examined for the plaintiff, thus describes the occurrence: "Question. What did you notice after you lowered them five or ten feet? Answer. I noticed I had no control of the throttle valve. Q. Felt it getting loose, and that you had no control of it? A. No control of it. Q. What did the engine do, was there a reversal or not?. A. I used my reverse lever in place of the throttle valve. I could shut the steam off with the reverse lever, and that would stop the steam from going onto the piston.

Q. You got hold of the reverse lever, did you? A. I had hold of the reverse lever at the same time. Q. At the same time that you noticed something wrong with the throttle valve? A. Yes, sir. Q. Did you reverse the lever? A. I pulled the reverse lever back to the center notch. Q. What effect did that have on the action of the machinery and car? A. Providing I could have put it- Q. What was done there? A. By pulling the lever to the center I pulled it over the center, and gave it the other way, and that projected the cage upwards.

Q. In reversing the engine, turning that reverse lever over, if you had got it in the notch, the cariage would not have started up at all? A. No, sir. Q. But, because you pulled it by the notch, that sent it up? A. Yes, sir. Q. That was accidental? A. Yes, sir; accidental. My intention was to get it into the notch to shut the steam off the engine. Q. And pulling it by the center, so it let the steam in the other end, was accidental? A. Yes, sir. Q. You didn't mean to do that? A. No, sir. * ** Q. You shoved the reversing lever a little past the center? A. I pulled it over the

center, and that caused the upward tendency. Q. And that had the effect of sending the carriage up? A. Yes, sir. Q. Of letting the steam on the other end? A. Yes, sir; the other side of the cylinder.

* Q. How far up did the cage run? A. Why, the cage run, from where it started, about forty-five feet. Q. After you got the cage stopped- You say you got the cage stopped by this action with your reverse lever? A. Yes, sir. Q. And you got it up then about forty-odd feet? A. Fortyfive feet. Q. What did you do then, -did you lower it down? A. I put the brake on, and considered a little bit, and I slackened my brake, and let the carriage down by the brake, where it stood. Q. And you put your brake on, and stopped that car? A. I put my brake on when I had the reverse lever right in the notch, and the engine stopped." It is thus seen that the upward motion of the cage was the result of an accidental mistake of the engineer in pulling his reverse lever a little too far over, -just past the center notch. Had he stopped pulling where he intended to stop, at the center notch, the engine would have stopped, just as it did when he let the cage down, and the accident would not have happened. It must be observed, further, that the accident did not happen as the result of any defect in the machinery, nor merely as the result of the upward motion of the cage. When the cage reached the upper landing, the deceased, for some reason which he did not explain, but which might fairly be attributed to apprehension of danger, jumped from the car, and that was the last that was seen of him till his dead body was found at the bottom of the shaft. He evidently tried, notwithstanding the rapid upward movement of the cage, to jump off on the upper platform, and, in doing so, fell into the shaft. The other two men who were with him on the cage remained there, and were not hurt. Had he remained there, he would not have been hurt.

Now, this is the whole story of the accident: The engineer attemped to stop the engine by pulling his reverse lever. He pulled it a little too far, not intending to do so, and he thereby caused the cage to shoot upward rapidly. The deceased attempted to jump off on the upper platform, but missed his footing, and fell down the shaft and was killed. The cage stopped almost at the instant he jumped off, and those who remained on it were unharmed. The upward motion of the cage was caused by the unintentional mistake of the engineer, and it was the rapid upward motion of the cage alone, and exclusively, that caused apprehension in the mind of the deceased, and it may be conceded that It was that apprehension which induced him to take the terrible risk he did in leaping from the cage. Now, the engineer was a fellow servant of the deceased, and for his mistake, whether negligent or otherwise, the v.27A.no.7-26

defendant company is certainly not liable. We cannot see that it is of any consequence what his reason was for attempting to stop the engine. It was not his desire or his attempt to stop the engine, no matter from what cause, that of itself alone caused the accident, but the manner of stopping it. Stopping the engine would have prevented the accident, and this is what the engineer attempted. There was no defect in the màchinery that prevented him from stopping it just where he wanted to stop it; but he pulled the reverse lever a little too far, and that, and that alone, let on the steam, and caused the upward motion. The upward motion caused the apprehension of the deceased, and that apprehension caused him to do the very rash act of jumping from the cage when it was in rapid motion, thereby losing his life. Had the engineer pulled his lever more carefully, and stopped it where he intended to, in the center notch of the ratchet, the upward motion of the cage would not have taken place, and the accident would not have occurred. How, then, is the defendant to be held responsible, unless it is legally responsible for the fault or the mistake or negligence of the engineer, who was the fellow servant of the deceased? We cannot see, and therefore are of opinion that the judgment should be reversed for that reason.

The case was tried almost entirely upon the theory that a cotter pin, or a substitute for it made of wire, had broken, and fallen out from its position through the end of the fulcrum pin or bolt of the throttle lever, and that the fulcrum bolt then worked out of its place, and thus the engineer lost the control of the throttle valve. It is contended for the plaintiff that the wire cotter pin was defective from long use, and that the defendant ought to have known of the defect, and corrected it before the accident, and, because that was not done, the defendant was liable for the death of the plaintiff's husband. It was also claimed for the plaintiff that this kind of a cotter pin was not in common use, and was insufficient for its service, and therefore its use by the defendant was negligence. In reference to these last contentions, we agree with the learned court below in holding that wire cotter pins such as this were in common use, and the employment of it was not negligence. The very great preponderance of the testimony was to this effect, and also to the effect that they were quite as safe as the spring cotter, split at the end, or as a fulcrum bolt with a nut or a burr on the end secured by a spring cotter. The plaintiff's own witness, Miles, the engineer, was asked: "Question. Was that the usual and ordinary contrivance to be used in a place like that? Answer. Yes, sir; that is what I have always seen used in all the places I have been to." Only two witnesses for the plaintiff-one an engineer and the other a machinist-testified that it was not in common use, and in their opinion was