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them at every change in the weather. The

(216 Pa. 583) public need for them is greatest in bad weath POWELSON V. UNITED TRACTION CO.

The knowledge and experience of the (Supreme Court of Pennsylvania. Jan. 7, 1907.) motorman did not suggest to him any undue CARRIERS-INJURY TO PASSENGER-EVIDENCE. risk of accident, and we cannot say, or per In an action to recover for injuries received mit a jury to conjecture, that because an

by a passenger on a street car on entering the accident did happen in this case, it affords

same, evidence held to require judgment for de

fendant. good ground for charging the motorman with negligence, because he did not foresee that the

Appeal from Court of Common Pleas, Al. car would get beyond control, and did not re

legheny County. fuse to start it down the hill. The theory

Action by James Powelson against the upon which this action was brought, as shown

United Traction Company. Judgment for by the statement, was not that the motor

plaintiff, and defendant appeals. Affirmed. man erred in his judgment. There is no such

Argued before MITCHELL, C. J., and claim made. The plaintiff charged only that FELL, BROWN, MESTREZAT, POTTER, the car was improperly operated, and that

ELKIN, and STEWART, JJ. the employés were incompetent and careless, William A. Challener, Clarence Burleigh, and that, owing to the careless management and James C. Gray, for appellant. Rody P. of the car, and by reason of deficient machin Marshall, Thomas M. Marshall, and John C. ery and lack of proper brakes, the car became Haymaker, for appellee. unmanageable. None of these charges were supported by evidence. There was no testi PER CURIAM. Counsel for appellant in mony whatever to show that the motorman their paper book say with great frankness was incompetent, or that he was remiss in that this appeal has been taken with the diany way in the operation of the car, or that rect purpose of having this court review the the brakes or machinery were deficient. The several cases relating to negligence in getting only thing which, in the opinion of the trial on or off a moving car, and declare that the judge, could be submitted to the jury was general rule that such act is negligence per whether the judgment exercised by the motor se is the only rule, and that there are no exman in deciding to run his car down the hill ceptions to its operation. was bad. But no witness was produced who The court have given the cases attention, testified that the situation at the brow of and have not been convinced that they need the hill, as it appeared before the acci. any substantial modification. The general dent, was such as to deter a prudent motor rule is a good rule, the exceptions are not man from attempting to take his car down. many, and they will not be lightly increased. The finding of the jury in this respect could But to say that no exception shall be pernot have been based on evidence, but only mitted under any circumstances would be to on conjecture. At most, it would be their ignore the infinite variations of human acjudgment after the accident as against that tion under pressure of emergencies or doubt, of an experienced motorman, upon the cir and to reduce the elastic principles of the cumstances as they existed before the acci common law to the rigidity of a penal statdent, and in a situation, too, where his own

ute. But how clearly the exceptions must safety was at stake in the course to be pur

he shown to be such is made manifest by the sued. Hindsight is better than foresight,

cases of Hunterson v. Traction Co., 205 Pa. no doubt, and it is easy to criticise after the

568, 55 Atl. 543, Bainbridge v. Traction Co., event; but the iaw holds men responsible only

206 Pa. 71, 55 Atl. 836, and Boulfrois y. for such consequence as can, in the exercise

Traction Co., 210 Pa. 263, 59 Atl. 1007, 105 of reasonable prudence, be foreseen. We feel

Am. St. Rep. 809. that the facts of this case negative any in

This was a very close case, but when it ference of negligence arising out of the mere

was here before (204 Pa. 474, 51 Atl. 282) it attempt upon the part of the motorman to was held to be one for the jury. It was tried operate the car, proceeding as he did, slow by the court below on the lines of the opinion ly and cautiously, feeling his way, as it

by our late Brother Dean, and we have seen were, until unfortunately he found by trial nothing to change our views. that the conditions were so unusual, that, con Judgment affirmed. trary to his expectation, based upon long experience, the sand would not enable him to

(217 Pa. 7) control his car. We are unable to find in this record any evidence of negligenon upon

STERLING VARNISH CO. V. MACON et al. the part of the defendant company sufficient

(Supreme Court of Pennsylvania. Jan. 7. 1907.) to justify the submission of the case to the

APPEAL APPLICATION TO OPEN DECREE — jury. This plaintiff was not upon the car, and


An employer brought a bill to enjoin former was not therefore entitled to the benefit of

employés from using the secret processes which the presumption which arises in case of in they had contracted not to use except for comjury to a passenger.

plainant's benefit. The evidence showed a clear The assignments of error are sustained, and

prima facie case of fraudulent breach of con

tract. Held, that where the trial court refused the judgment is reversed,

an injunction unless evidence of the secret

process was introduced which complainant declined to do, and after an appeal complainant applies for a reopening of the case for newly discovered evidence, the decree will be reversed with directions to reopen the same.

Appeal from Court of Common Pleas, Allegheny County.

Bill by the Sterling Varnish Company against Latimer S. Macon and others. Decree for defendants, and plaintiff appeals. Reversed.


M. Hampton Todd, A. Leo Weil, Breck & Vaill, and Henry C. Todd, for appellant. Johns McCleave and John S. Wendt, for appellees.

could be rendered effective. He therefore limited the injunction to the spray pipe apparatus. It is not impossible, however, that appellant may make out satisfactory proof of its case by other evidence without the necessity of disclosure of secrets, nor is it clear that it has not done so. But we need not decide that point at present, as complainant has made application for reopening the case on the ground of material evidence discovered after the appeal was taken to this court. The importance of this evidence is unquestionable, and coming as it does from the other side it cannot be held to have been within the reach of appellant at an earlier date by any reasonable diligence. The application, therefore, should be granted.

The decree is reversed, with directions to allow the case to be reopened for further evidence.

PER CURIAM. Defendants obtained knowledge of certain business secrets relative to machinery and processes while in the employment of complainant under contract expressly stipulating that they were not to divulge any of such secrets or to make use of them or any part of them directly or indirectly except for complainant's benefit. This bill was filed on the ground that after leaving complainant's employment the defendants were using such secrets for their own advantage.

It was shown that they had opportunity and motive for such use; that one of them, while in sole charge during the absence of the president of the company, had had blueprint copies of machinery and drawings made, wbich covered the dimensions of the complainant's unique special apparatus, the drawings for which were kept in the company's safe, to which he had access; that no entry was made on the company's books as to these copies or the payment for them; that during the same period of the president's absence one secret formula at least for extra insulating varnish was copied by Macon in his own handwriting, and that he also had in his custody and charge at the time of the trial a large number of drawings and blueprints of drawings of all the machinery and apparatus in plaintiff's works; and, lastly, that a portion of defendant's machinery known as the "spray pipe” apparatus was a direct copy and infringement of complainant's secret apparatus.

This summary of the facts condensed from the court's finding, omitting details as to the resemblances, etc., shows a clear prima facie case of fraudulent breach of contract by the defendants. The learned judge below was apparently of this opinion; but, complainant having refused to put in evidence its secret formulæ, on the very substantial ground that to do so would destroy the secrecy which makes so large an element in its value, the judge thought that the proof was not technically sufficient, and that, unless the secret processes were disclosed, no relief on the vital question of infringement

(216 Pa. 425) WOOD et al. v. SCHOEN. (Supreme Court of Pennsylvania. Jan. 7, 1907.) 1. WILLS-CONSTRUCTION.

In the construction of a will, if the language employed is plain, no rules of construction are necessary to aid in its interpretation, and the usual and ordinary meaning is to be given to the words and terms unless the context clearly shows that such was not the meaning of the testator.

(Ed. Note.-For cases in point, see Cent. Dig. vol. 49, Wills, 8$ 946–955, 972–986.] 2. WILLS-CONSTRUCTION-HEIRS.

Testator gave the income of his estate to his wife and three sisters for life, and provided that on the death of his wife and his three sisters one-third of the real estate and moneys from the personal estate should go to his nephew and niece in fee equally, and the other twothirds to such child or children as he might leave and the issue of such child or children as might be deceased. and in default of such child or children or issue, then to those who would be entitled thereto under the intestate laws. Held, to give two-thirds of the remainder of his real estate to those who were his heirs at the expiration of the particular estate, and not to those who were his heirs at the time of bis death.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 49. Wills, 88 1116–1127.) 3. SAME.

Where testator gave the income of his estate to his wife and three sisters for life, and at their death to certain of his heirs, and to any children or issue thereof, and testator died without leaving children or the issue of chil. dren, but his wife and sisters surviving, his heirs at the time of his death could not make a good title to his real estate.

Appeal from Court of Common Pleas, Allegheny County.

Action by James S. Wood and others against William H. Schoen. Judgment for plaintiffs, and defendant appeals. Reversed.

It appeared that the defendant agreed with plaintius to purchase a lot of land in the second ward of the city of Pittsburg. The land formerly belonged to James Scott. The latter died leaving a will by which he direct. ed, inter alia, as follows:

“(1) I devise all of the real estate of which tion. As well said by Sharswood, J., in I may die seized, wherever the same may be Reck's Appeal, 78 Pa. 432: “All mere technicsituated, to George W. Van Fleet, of the place al rules of construction must give way to aforesaid, and


and to such the plainly expressed intention of a testator, successor or successors as may be appointed if that intention is lawful. It is a rule of in law, in trust for the uses and purposes common sense as well as law not to attempt hereinafter expressed. In the event of my to construe that which needs no construc. death without children my said trustee shall tion." The learned judge below correctly obpay one-half of the rents, issues and profits serves in his opinion that remainders are to of said real estate, after the deductions afore be regarded as vested rather than contin. said, annually to my wife Emma, during her gent, and that where property is limited by natural life, and also the one-half of the in will to one for life, and after his decease to terest annually upon the moneys invested as the testator's next of kin or heirs, or other aforesaid, less the expenses-the other half classes of persons similarly described, the perof the said rents, issues, and profits and in sons who answer that description at the death terest, less the deductions aforesaid, annually of the testator and not those who answer it to my sisters, Eliza S., Mary and Catharine at the death of the tenant for life shall take, N., during their joint lives and to survivor unless a contrary intent clearly appears from or survivors for life. Upon the death of my the will. But it should be added that when said wife and all of my first named three it clearly appears that the testator intended sisters, I will, devise and bequeath the one his heirs or next of kin at the death of the third of the real estate and moneys from the tenant or legatee for life to take, sucb intent personal estate in the hands of my said trus-will prevail. Buzby's Appeal, 61 Pa. 111. tee to my nephew, James Wood, and my James F. Scott devised all his real estate niece, Lizzie Wallace, in fee, equally; the to a trustee for the purposes named in his other two-thirds thereof to such child or will. If he died without children, he directchildren as I may leave, and the issue of ed his trustee to pay one-half of the proceeds such child or children as may be deceased. of the real estate to his wife for life, and the And in default of such child or children other half to his three sisters and the suror issue, then to those who would then be vivor of them for life. Upon the death of entitled thereto under the intestate laws his wife and sisters he devised one-third of of this state. And I authorize my said his real estate to a nephew and niece, and trustees aforesaid to convey and assure "the other two-thirds thereof to such child the same by proper assurances in law to or children as I may leave, and the issue of said persons respectively.” James F. Scott, such child or children as may be deceased; deceased, left to survive him neither child and in default of such child or children er nor descendants in any degree, but did leave issue, then to those who would then be ento survive him a widow, Emma E. Scott, and titled thereto under the intestate laws of this three sisters, viz., Eliza S. Scott, Mary Scott state. And I authorize my said trustees and Catharine N. Scott, spinsters, and a aforesaid to convey and assure the same by nephew, James Wood, a son of Grace Wood, proper assurances in law to said persons rea deceased sister, and a niece, Lizzie Wallace, spectively." The land involved in this ac. daughter of Ellen Wallace, a deceased sister, tion passes under this last clause of the testa. all of full age. The plaintiffs were the heirs, tor's will, and, as the learned judge of the or the representatives of the heirs, of James court below says, the question is whether it F. Scott. The defendant refused to accept passed as a vested remainder to those who a deed, claiming that the title offered to were at the time of the death of the testator him was not marketable.

entitled under the intestate laws, or, as a Argued before MITCHELL, C. J., and contingent remainder to those who shall, at FELL, BROWN, MESTREZAT, ELKIN, and the death of the survivor of the life tenants, STEWART, JJ.

one of whom is yet living, be the next of kiu George T. Hildebrand, for appellant. S.

of the testator and entitled to take as if the W. Dana and Richard F. Dana, for appellees.

testator had died intestate at the moment of

the death of the survivor of the life tenants. MESTREZAT, J. The purpose in constru The court held that the estate devised to the ing a will is to ascertain the intention of the remaindermen vested at the death of the testator, so that it may be carried out in the testator, and passed to those who were endisposition which he has made of his prop titled under the intestate laws at that time. erty. Technical rules of construction should We think this was an erroneous interpre. only be resorted to and applied in the inter tation of the will, and defeats the clearly pretation of wills when found to be neces expressed intention of the testator. It is sary in determining the meaning of the in produced by the application of the rule of strument, so as to effectuate the purpose of construction noticed above, without giving the testator. If the language employed by due consideration to the language of the him in disposing of his estate is plain and will. This language is neither ambiguoue clearly discloses his intention the will inter nor indefinite, and therefore it is not neces. prets itself, and hence no rules of construc sary to invoke the aid of any rules of intertion are necessary to aid in its interpreta-pretation in construing the instrument. The

testator did not dle intestate as to any part , connection is susceptible, and consequentof his estate. The one-third of his real ly the meaning with which the testator used estate he devised to his nephew and niece it. This construction, we think, not only in fee, and the other two-thirds in dispute gives full effect to the word, but carries out here, were given to those who, at the ex the evident intention of the testator as dispiration of the particular estate, would then closed by the entire will. be entitled thereto under the intestate laws We cannot agree with the contention of the of the state. This did not create an intes learned counsel of the appellee that the eftacy, but was simply descriptive of the per fect of the disposition of the remainder by sons who were to take as devisees under the the will is the same as if the testator had will. They were such as would be entitled made no disposition of that part of his esunder the intestate laws, at the time the tate and had died intestate as to it. In the clause of the will became operative. This latter instance, it may be conceded that the inphrase of the devise, therefore, can have no testacy would have taken effect as of the significance in fixing the time at which the date of the testator's death and the persons remaindermen were to be determined. The then competent would have taken the essimple question here is, did the testator tate subject to the prior life tenancies. But limit the estate devised to those entitled the manifest purpose of the testator was to under the intestate laws to persons of that change the effect of an intestacy occurring description living at his death, or at the at his death, and to give his real estate to death of the survivor of the life tenants? persons other than those who would be his The will itself, unaided by any technical heirs at that time, and hence he devised it, rules of construction, gives a definite and on the death of the life tenant, to those "who unequivocal answer to the question. Its would then be entitled" and not to those language is: “Upon the death of my said "who are entitled" under the intestate laws wife and all of my first named three sisters, of the state. If the testator had used the I will the other two-thirds

latter expression there would be some ground then to those who would then be entitled for the appellee's contention. But the lanthereto under the intestate laws of this guage employed leaves no doubt as to the state.” The clause provides not only for the persons who were intended as his beneficiarevent which shall precede the passing of the ies. We are of opinion that it was the intenestate, but also the time when the remainder tion of the testator, as disclosed by his will, men are to be determined and the estate shall to devise the two-thirds of the remainder of pass. The word “then” is used twice in this his real estate to those who shall be his heirs collocation of words and for both purposes. at the expiration of the particular estate, and In the first connection, it is manifestly used not to those who were his heirs at the time as a conjunction, meaning "in that event," of his death. The agreement among those and in the second as an adverb of time, mean

who were heirs of the testator at the time ing “at that time." Inserting the definition of his decease did not create vested interests for the word itself the clause will read as in them so as to authorize them to convey a follows: “Upon the death of my said wife good title to the defendant. The will creatand all of my first named three sisters * * * ed a contingent remainder in a class to be in that event to those who would at that ascertained at the death of the surviving life time be entitled thereto under the intestate tenant, and hence only those of the class laws of this state.” A universal rule in con living at that date will bave an interest in struing a will requires that, if possible, ef

the remainder and will be capable of confect be given to every word and every part tracting in regard to it. We cannot see that of it; and an equally well-established rule Ralston's Estate, 172 Pa. 104, 33 Atl. 273, requires the usual and ordinary meaning to has any application to the facts of this case. be given to words and terms in a will, un The judgment of the court below is reversless the context shows that such was not ed, and in accordance with the terms of the the meaning intended by the testator. We case stated, judgment is now entered in must therefore give effect to “then” as used

favor of the defendant, and against the in both connections. It cannot be used in plaintiffs, for the sum of $1,000. the second connection as a conjunction for the reason that it would be surplusage, it already having been used manifestly in that

(216 Pa. 604) sense in the same sentence. Having been

ALLES V. LYON. used twice so closely together in the same (Supreme Court of Pennsylvania. Jan. 7. 1907.) sentence, the word clearly was not employed 1. HUSBAND AND WIFE-TITLE BY ENTIRETIES the second time for the same purpose nor


Where a husband and wife are owners by with the same meaning as at first used. If, therefore, it is given its adverbial significance

entirety of a lot in a city, and a municipal lien

is filed against the wife alone, and judgment in the second connection, it must refer to the entered against her, a sale of the husband's indeath of the surviving life tenant as the

terest under the lien passes no title. time at which the remaindermen are to be


ATED. ascertained. That is the only reasonable in

Where a husband and wife hold an estate terpretation of which the word used in that as tenants by entireties, and are divorced, the

66 A.-6

tenancy does not thereby become a tenancy in common,

[Ed. Note.-For cases in point, see Cent. Dig. vol. 26, Husband and Wife, § 37.) 3. SAME - DIVORCE — RULE TO BRING EJECTMENT.

Where a husband and wife holding an estate by the entireties are divorced, the wife is not entitled to a rule to bring ejectment against the husband, and, if such a rule is allowed, the failure of the husband to appear is immaterial, as the record shows why ejectment cannot be brought.

Appeal from Court of Common Pleas, Allegheny County.

Action by Louisa Alles, formerly Louisa Reis, against David A. Lyon. Judgment for plaintiff. Defendant appeals. Reversed.

The plaintiff, Louisa Alles, was divorced from John P. Reis. Reis and the plaintiff held the land in question as tenants by en. tireties. Plaintiff claimed that after the divorce she bought the land in at a sale under a municipal lien, and that she had a full fee-simple title, covering the entire interest in the land. Other facts appear by the opinion of the Supreme Court. The court entered judgment for plaintiff for $1,775. Defendant appealed.


John W. Thomas, for appellant. W. H. Lemon, for appellee.

ported in this country the decisions, all more or less affected by statutes, are at variance, with no clear preponderance in either way. Lewis' Appeal, 85 Mich. 340, 48 N. W. 580, 24 Am. St. Rep. 94, may be regarded as the best discussion in favor of the view that the nature of the estate is not changed, and Ames v. Norman, 36 Tenn. 683, 70 Am. Dec. 269, as the best on the other side. The question has not previously come before this court, and we are left to decide it on general principles. An estate by entireties is one held by husband and wife by virtue of title acquired by them jointly after marriage. Being regarded as one person in law they take not in parts or shares, like joint tenants or tenants in common, but each takes the whole, or in the ancient phrase they are seized, not per mie et per tout, but per tout only. Incident to this estate as to joint tenancy is the right of survivorship, with this difference, that on the death of husband or wife the survivor takes no new title or estate; he or she is in possession of the whole from its inception. It was early held that our act of March 31, 1812 (5 Smith's Laws, p. 395), abolishing survivorship in joint tenancy, did not affect estates by entireties. Robb v. Beaver, 8 Watts & S. 107 (111); and the same view has been taken of the married women's acts of April 11, 1848 (P. L. 536), and later. Diver V. Diver, 56 Pa. 106; Bramberry's Est., 156 Pa. 628, 27 Atl. 405, 22 L. R. A. 594, 36 Am. St. Rep. 64.

The general subject of estates by entireties is learnedly discussed by Lewis, C. J., in Stuckey v. Keefe's Ex'rs, 26 Pa. 397, our leading case. It was there held that à conveyance to busband and wife, their heirs and assigns, "as tenants in common, and not as joint tenants" created an estate by entireties, and the opinion was strongly expressed that the estate arose by virtue of “a rule of law founded on the rights and incapacities of the matrimonial union" and therefore that the intention was immaterial. No subsequent case has gone so far, and in Merritt v. Wbit. lock, 200 Pa. 50, 49 Atl. 786, it was said that it may be considered as still an open question whether husband and wife may not, since the married women's property acts, take as well as hold in common if that be the clear actual intent, notwithstanding the presumption to the contrary. The argument for the change by divorce from an estate by entire. ties to a tenancy in common rests on the assumption that as the basis of the estate is the unity of person, a severance of that unity carries with it a severance of the estate; that as after divorce an estate by entireties could not be created between the parties it cannot be continued. But this view fails to give due weight to the rule that the quality of the estate is determined at its inception. It arises, not out of unity of person alone, but out of unity of person at the time of the grant. "If an estate be made to a man and woman and their heirs, before marriage, and

MITCHELL, C. J. It appears by the case stated that the husband and wife were registered owners by entireties of the lot in question when the municipal lien was filed against the wife alone. Judgment on it was entered against her only, and though the levari facias avers that it is issued "with notice to John P. Reis,” the husband, yet, as said by the learned judge below, it does not appear that any such notice was given. As against the husband, therefore, the lien was a nullity, and the sale under it passed no title. Simons v. Kern, 92 Pa. 455; Ferguson v. Quinn, 123 Pa. 337, 16 Atl. 844. There is no question involved about attacking a judgment collaterally as the record shows the want of jurisdiction in the court to render such judgment. When, therefore, the wife bought at the sale, she bought nothing that she did not have before, her own right of survivorship. But even if the whole title had been divested by the sale she would have bought under an obligation as trustee for her husband as co-tenant, and could not have ousted him in that way. She therefore acquired nothing as against him by the sale.

Coming now to the main question in the case, we are of opinion that the court below erred in holding that the estate by entireties was severed by the subsequent divorce of the husband and wife. The subject is very bare of authorities. The law as to divorce prevented this question from arising in the earlier English cases, and in the few cases re

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