368 granted, and, when such surrender is permitted, due proof thereof should be made to the Public Service Commission; or, if in any case it is deemed more expedient, the order granting the certificate of public convenience may be made conditional on a decree being obtained under the act of 1856 and proof filed with the Commission. Joseph P. Gaffney, of Philadelphia, for appellant. E. Clinton Rhoads, of Philadelphia, for appellees. SCHAFFER, J. The facts essential to a proper understanding of this case are these: Plaintiffs held a judgment against John M. And now, April 18, 1921, it is adjudged | White, whose wife died seized of an undividthat the condition attached to our affirmance ed interest in certain real estate, leaving of the judgment of the Superior Court approving the order of the Public Service Commission, granting a certificate of public convenience to the Cochranton Telephone Company, allowing it to acquire the property, rights, franchises, etc., of the Merchants' and Farmers' Telephone Company, has been properly complied with, and the judgment in question is affirmed absolutely. (270 Pa. 334) RAMBAUT et al. v. WHITE (BAUER, (Supreme Court of Pennsylvania. April 18, 1921.) Curtesy i2(6)-Attachment held to reach curtesy interest in land. Where judgment debtor, who was tenant by the curtesy in real estate, agreed to convey the property, and the orphans' court authorized the guardian of minor children to join in the sale, and judgment debtor signed a paper attached to the petition for authority to sell, in which he stipulated that he would join in the execution of the deed to the purchaser, he still retained his curtesy interest, which was subject to attachment, no actual release of his interest having been effected, and only a small part of the consideration money having been paid, and no deed having been delivered to the intending purchaser. him and two minor children surviving. He and other parties in interest joined in an agreement to convey the property, subject to the approval of the orphans' court, and subsequently the orphans' court authorized the guardian of the minors to join in the sale. White signed a paper attached to the petition for authority to sell, in which he stipulated that he, without consideration, would join in the execution of the deed to the purchaser. With matters in this shape, and before the deed was executed, plaintiffs issued a foreign attachment on their judgment and White's interest as tenant by the curtesy in the real estate was attached. The question for solution is whether White, at the time of the issuance of the writ, had any interest in the property which could be attached. Appellant contends that, since the writ did not issue until after White had joined in the agreement of sale and signed the petition to the orphans' court, he, by agreeing to surrender his curtesy without consideration, in effect released his estate to his children, and so completely divested himself of all interest as to leave nothing which the attachment could reach; but with this we cannot agree. No actual release of his interest was executed, and, at the time the attachment was levied, only a very small part of the consideration money had been paid, and no deed had been delivered. Under the circumstances here appearing, White's interest in the land still remained in him, and therefore was as Action by Thomas D. Rambaut and anoth- much bound by the attachment as it would er against John M. White, in which Fred- have been had he not executed the agreement erick W. Bauer, guardian of the estate of of sale or joined in the orphans' court proMary White and Susan White, minors, in-ceeding. By his agreement to convey without tervened. From judgment for plaintiff, the intervening defendant appeals. Affirmed. Appeal from Court of Common Pleas, Philadelphia County; Charles B. McMichael, Judge. Argued before MOSCHZISKER, C. J., and FRAZER, WALLING, SIMPSON, SADLER, and SCHAFFER, JJ. consideration, he could not legally augment For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (113 A.) (270 Pa. 278) Indemnity 13(2)-Borough held entitled to A borough was entitled to recover from abutting owners the amount of a judgment recovered from the borough by a pedestrian injured on a walk, where the injury occurred by reason of defective plank used by the abutting owners in constructing a temporary walk on request of the burgess, who desired that barriers placed be taken away, the use of the defective plank thereafter in constructing the walk being the proximate cause, and not the removal of the barrier, defendant's defense being that the negligence of the borough was as great as, or greater than, that of the abutting owners. have, the walk "fixed up," temporarily, for use by the public; the sidewalk in question had to be replaced, so defendants decided to lay it in such manner as to furnish a form which could subsequently be employed in the construction of a concrete pavement; they accordingly lowered the supports, relaying the walk about five inches below its previous level, and on Labor Day it was in public use; on the evening of that day, September 7, 1914, while Mrs. Brennan was passing over the place of the accident, a plank broke beneath her, and one foot and leg went through the aperture; she was thrown violently, sustaining the injuries for which she afterwards recovered against the borough, and for the payment of which the latter was allowed to recoup itself in the present action. The trial judge instructed the jury that plaintiff was entitled to a verdict, which was rendered accordingly, and this appeal is by defendants from a judgment thereon. Appellants contend that, if negligence ex Appeal from Court of Common Pleas, Bradford County; William Maxwell, Judge.isted, the borough actively participated there Action by the Borough of Towanda against John S. Mingos and another. Judgment for plaintiff, and defendants appeal. Affirmed. Argued before MOSCHZISKER, C. J., and FRAZER, WALLING, SIMPSON, KEPHART, SADLER, and SCHAFFER, JJ. Joseph W. Beaman, of Towanda, for appel lants. J. Roy Lilley, of Towanda, for appellee. PER CURIAM. Towanda borough, plaintiff, having paid a judgment obtained against it by Jessie D. Brennan, in an action of trespass for injuries received by her from a fall on a sidewalk, brought this suit to recover over against Mingos and Van Horn, owners of the abutting land. The walk where the accident occurred was constructed over a depression in the ground, and supported by trestling; during certain building operations on defendants' property, in the summer of 1914, they erected barriers to keep the public off; this condition continued until about Friday, September 4, 1914; on the evening of that day, F. J. Kingley, burgess of the borough, went to the premises, and found both Mingos and Van Horn there; he told one of them that, the following Monday, Labor Day, it was proposed to have a celebration on the street in front of their property, and he wanted, or would like to in by requesting defendants to "fix up" and open the walk to the public for an occasion when it would be subjected to special strain: that without this request it would have remained barricaded, and the public would have been excluded until the concrete pavement was laid; second, if there were defective supporting planks, a commissioner had actual knowledge thereof, and the burgess had "looked the premises over," therefore, the negligence of the borough was, under the circumstances, as great as, or greater than, thai of the property owners. The court below was right in holding "de- For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (270 Pa. 306) SERFAS v. LEHIGH & N. E. R. CO. (Supreme Court of Pennsylvania. April 18, 1. Railroads 1921.) 327(1)-Traveler must stop, look, and listen. A traveler must stop, look, and listen before entering upon a railroad track. 2. Railroads 328 (8)-Darkness will not ex WALLING, J. This suit grows out of a grade crossing accident. There is an improved public highway extending from Bath easterly to Nazareth, in Northampton coun ty; about 80 rods north of this road is the plant of the Penn Allen Cement Company. To reach the plant from its main line, defendant has a switch crossing the highway at grade. On the evening of December 5, 1917, plaintiff's husband, Lloyd Serfas, while driv cuse motorist from stopping, looking, and ing a Peerless automobile easterly upon this listening. The fact that it was dark will not excuse a motorist from entering on a railroad track without stopping, looking, and listening, for a motorist should have his car under control and so lighted as to see tracks which he is approaching. 3. Railroads 324(1)-Automobile should be equipped with lights and under control. The driver of a motorcar traveling by night should have such headlights as will enable him to see in advance the highway and to discover railroad crossings, and must keep his car under such control as will enable him to stop. 4. Railroads 327 (13)-Stop, look, and listen rule applies to sidings. So far as relates to the duty to stop, look, and listen, there is no distinction between a siding and main tracks. 5. Railroads 327 (7)-Stopping of automobile on track not a compliance with the look and listen rule. It is no compliance with the stop, look, and listen rule for a motorist to stop his automobile on the tracks. 6. Railroads 330 (2)-Traveler in darkness not excused by misplaced warning sign. Where a motorist without stopping, looking, or listening, in the dark drove on a railroad track, where he was struck, the fact that the warning post was on the wrong side of the track will not excuse his negligence, as the night was dark and post was entirely obscured. 7. Railroads 330 (2)-Traveler bound to stop, look, and listen regardless of warning sign. The misplacement, or even the absence, of a warning sign, will not excuse a traveler from the duty of stopping, looking, and listening before he enters on railroad tracks. Appeal from Court of Common Pleas, Northampton County; Russell C. Stewart, Judge. Action by Emma A. Serfas against the Le high & New England Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed. Argued before MOSCHZISKER, C. J., and FRAZER, WALLING, SIMPSON, SADLER, and SCHAFFER, JJ. C. F. Smith, of Easton, for appellant. highway, accompanied by his brother, was struck and killed by a gondola car which, with other cars, was being backed from the plant over this crossing. The trial judge submitted the case to the jury, who found for plaintiff, but later entered judgment for the defendant on the whole record; from which the former brought this appeal. [1-3] To vindicate the judgment, it is only necessary to consider the question of contributory negligence. The deceased, who was familiar with the road and crossing, was driving from 15 to 20 miles per hour, and admittedly did not stop until upon the track, and then only because of a shout from the rear brakeman, who saw the impending collision, which instantly resulted. The deceased openly violated the inflexible rule requiring the traveler to stop, look, and listen before entering upon a railroad track. The only excuse offered is the darkness, which is insufficient. There was possibly some slight artificial light there from a trolley car standing near by and from electric lights on a high pole; but, entirely aside from this, night to have such a headlight as will enable it is the duty of a chauffeur traveling by him to see in advance the face of the highway and to discover grade crossings, or other ob stacles in his path, in time for his own safety, and to keep such control of his car as will enable him to stop and avoid obstructions that fall within his vision. For example, it is the chauffeur's duty to keep his car under such control that whenever his headlight has brought a grade crossing into view he can stop before reaching it. Such crossing is not invisible by day, nor, when an auto is equipped with proper lights, by night; in either case, the chauffeur must discover its presence and stop before driving thereon. We have never held darkness an excuse for failure to perform this absolute duty, but the contrary. Anspach v. Phila., etc., Ry. Co., 225 Pa. 528, 74 Atl. 373, 28 L. R. A. (N. S.) 382; Eline v. Western Maryland Ry. Co., 262 Pa. 33, 104 Atl. 857. In the language of our Brother Kephart in McGrath v. Penna. R. R. Co., 71 Pa. Super. Ct. 1, 3: "It is the duty of the driver of a car, driving on a dangerous highway on a dark, stormy night, to have his car under such control that he may stop or turn it away when objects intercepting his passage come within range of (113 A.) the rays of light from his lamps. If he drives so fast that he cannot avoid what ordinary prudence would make a known obstruction, he is guilty of negligence." | look, and listen; the rule applies the same as when the gates are up, and in either event he must stop. The case of Wanner v. Phila. & R. Ry. Co., 261 Pa. 273, 104 Atl. 570, is not parallel to this. There Wanner was a passenger with no knowledge of the crossing; and in addition, the latter was so constructed that it could not be seen in time to stop the auto. In the case at bar, the trial court exonerated the defendant from the charge of negligence, but as to that we express no opinion. The judgment is affirmed. In the case at bar, the lights were burning on deceased's car, the crossing planks and rails were before him, as were the light colored concrete sides of the bridge just beyond and the warning sign post on the southeast corner eight feet from the rail; so there was ample on the ground to disclose to him the presence of the crossing, without reference to any notice given by, or of his ability to see or hear the approaching train. Should we hold that the traveler need not stop to look and listen because of darkness, then we should logically extend the same immunity in case of a fog or snowstorm, or when the crossing was dimmed by dust or otherwise, even in the daytime. To so hold would suspend the rule when needed most and practically destroy it. (Supreme Court of Pennsylvania. April 18. (270 Pa. 284) M. H. MCCLOSKEY, Jr., Inc., v. NORTH 1921.) 1. Corporations 398 (3)-Agreement of majority stockholder not binding on company. No verbal arrangement, understanding, or promise by a majority stockholder individually can in any wise obligate a corporation. To this we cannot consent. In the language of Chief Justice Paxson in Greenwood v. Railroad Co., 124 Pa. 572, 577, 17 Atl. 188, 189 (3 L. R. A. 44, 10 Am. St. Rep. 614): "The rule itself is so valuable; is sustained by such abundant authority; and is moreover founded upon such excellent common sense rea-2. Corporations 457-Company purchasing sons, that we will neither depart from it, nor allow it to be undermined by exceptions. It is a clear and certain rule of duty, and a departure from it is more than evidence of negligence; it is negligence per se." Or as stated by Mr. Justice Mitchell, in Aiken v. Penna. R. Co., 130 Pa. 380, 395, 18 Atl. 619, 620 (17 Am. St. Rep. 775): "It is not a rule of evidence, but a rule of law, peremptory, absolute and unbending; and the jury can never be permitted to ignore it, to evade it, or to pare it away by distinctions and exceptions." To like import is Follmer v. Penna. R. R. Co., 246 Pa. 367. 92 Atl. 340; Atlantic R. Co. v. N. Y. C. & St. L. R. R. Co., 67 Pa. Super. Ct. 320; and many other cases. property and business of partnership or individual not required to pay outstanding debts. In the absence of fraud, for a corporation to purchase the property and business and equipment of a partnership or an individual does not in any wise bind the vendee to pay legal lien against the property so purchased. outstanding debts, except such as might have 3. Receivers 75 Insolvent bank having claim against corporation in hands of receiver cannot proceed by set-off against a dividend declared by bank commissioner. It is the duty of a receiver of a corporation to take into his possession all the property, choses in action, rights, and credits of the corporation, and if personal property passes into the hands of a receiver which belongs to another or against which it has a lien, an appropriate remedy lies for its recovery if it [4] So far as relates to the duty to stop, can be found and identified, and a bank, claimlook, and listen, there is no distinction being lien on any property passing into the hands tween a siding and a main track. Peoples v. Penna. R. R. Co., 251 Pa. 275, 96 Atl. 652. [5] The fact that Mr. Serfas stopped upon the track was, of course, no compliance with the rule, as the required stop must be made before it is reached. Benner v. Phila. & R. Ry. Co., 262 Pa. 307, 105 Atl. 283, 2 A. L. R. 759; Gordon v. Director General of Railroads, 268 Pa. 497, 112 Atl. 68. of a receiver, could not set off the amount of the lien against a dividend declared by the bank which the receiver was appointed. commissioner in favor of the corporation for Appeal from Court of Common Pleas, Philadelphia County; William C. Ferguson, Judge. Proceeding by W. Lewis McGee, receiver of [6, 7] It is urged for plaintiff that the M. H. McCloskey, Jr., Incorporated, against warning sign post was set on the wrong side the North Penn Bank, in possession of John of the track; but, as the evidence on her be- S. Fisher, Commissioner of Banking, to the half is that such sign was entirely obscured use of Phoenix Trust Company. Judgment by the darkness, the deceased could not have for the former, and the latter appeals. Afbeen prejudiced or misled thereby. The mis-firmed. placement or even absence of a warning sign The following is the opinion of the lower will not excuse the traveler's failure to stop, court: "M. H. McCloskey, Jr., Inc., a corporation organized under the laws of the state of Pennsylvania, was a depositor in the North Penn Bank. At the time the bank was closed and its assets passed into the hands of the banking commissioner there was a balance to the credit of the said corporation in the amount of $21,317.06. "By direction of this court a dividend of 25 per cent. on the amount of depositors' claims was declared by the said banking commissioner. As such depositor, if there were no outstanding checks or other obligations due the bank, the said corporation would be entitled to have as its dividend the sum of $5,329.26. "On September 7, 1920, by decree of this court, W. Lewis McGee was appointed receiver for the said M. H. McCloskey, Jr., Incorporated, and the receiver has presented his petition for a rule on the banking commissioner to show cause why the dividend of 25 per cent. amounting to $5,329.26, should not be paid. "The banking commissioner admits the facts above stated, and interposes no objection to the payment of the said dividend, excepting the fact that he had received notice from the Phoenix Trust Company, requesting him not to make payment, owing to the fact that the said Phonix Trust Company had a claim against the same. [in the answer that the bank had ever charged against the deposit account of the corporation any sums or overdrafts or loans due by McCloskey & Bahls. The new corporation was regarded as any other depositor, and presumably its drafts were honored as such. There is no assertion that the bank held any obligation of the corporation; neither is there any averment that, by any corporate action, the debt or obligations of the old partnership had been assumed by the new corporation. No verbal arrangement, understanding, or promise by McCloskey individually, even if it be that he is a majority stockholder, could in any wise obligate the corporation to pay the debts of the copartnership. To assert that the corporation took over, or succeeded to, the business of the former copartnership is without significance. In the absence of fraud, for one to purchase property or equipment of a partnership or an individual does not in any wise bind the vendee to pay outstanding debts, excepting such as might have legal lien against the property so purchased. [3] "It must also be recognized that the petitioner is a receiver of a corporation, and, as such, it is his duty to take into his possession all of the property, choses in action, rights, and credits of the corporation. If personal property in the way of equipment passed into the hands of the receiver, which belonged to the North Penn Bank, or against which it had a lien, an appropriate remedy lies for its recovery, if it can be found and identified. There is nothing in the facts as we view them which would justify us in holding the North Penn Bank to be a preferred creditor against the estate of the corporation. If the bank, or the trust company which succeeded it, has a claim which it can assert against the corporation, that claim should be asserted upon the settlement of the accounts of the receiver. "The rule on the banking commissioner to pay the dividend is made absolute.” Argued before MOSCHZISKER, C. J., and FRAZER, WALLING, SIMPSON, KEPHART, SADLER, and SCHAFFER, JJ. John C. Gilpin, of Philadelphia, for appellant. "The Phoenix Trust Company filed an answer to the petition, setting forth, among other things, that it had purchased all the assets of the North Penn Bank; that at the time of the failure of the bank it had a claim against a partnership known as McCloskey & Bahls for a sum of money largely in excess of the dividend now claimed; that the corporation known as M. H. McCloskey, Jr., Incorporated, succeeded to the business of McCloskey & Bahls; that McCloskey & Bahls had assigned to the North Penn Bank, as collateral for their indebtedness, all their right, title, and interest in the money they were to receive from the United States government on a contract at League Island Navy Yard, and they also had pledged, in the manner described in the answer, as additional security, all their equipment and real estate; that M. H. McCloskey, Jr., individually, assumed the liabilities of the firm of McCloskey & Bahls; that M. H. McCloskey, Jr., owns a majority of the stock of M. H. McCloskey, Jr., Incorporated; and that he promised, on behalf of the corporation, to pay all of the obligations of the former firm of McCloskey & Bahls, and on account of such obligations the said is affirmed on the opinion of the court bePER CURIAM. The judgment in this case corporation had paid in point of fact the sum of approximately $20,000. The Phoenix Trust Company therefore asserts a set-off against the present dividend, and, further, avers that it has brought suit in court of common pleas No. 4 against McCloskey & Bahls for the collection of its claim, which amounts to nearly $300,000. [1, 2] "Whatever may have been the dealings between McCloskey & Bahls and the North Penn Bank, there can be no doubt the bank conceded the existence of a separate entity in the corporation which was subsequently formed, because it opened a deposit account with that corporation. It is not suggested anywhere Edward J. Mingey, of Philadelphia, for appellee. low. See, also, Union National Bank v. Iron Co., 3 Sadler, 58, 6 Atl. 577; Lancaster County National Bank v. Huver, 114 Pa. 216, where, at page 219 of the latter (6 Atl. 141), the distinction between decisions in which the rights of third parties have intervened and those concerning the rights of the original parties is recognized, and, as bearing on the general question here involved, Dougherty v. Bank, 93 Pa. 227, 39 Am. Rep. 750, and Warner v. Hare, 154 Pa. 548, 26 Atl. 240. Judgment affirmed. |