218 (Pa. against public policy, and therefore void. I nonsuit, plaintiffs take separate appeals. Af- "We cannot agree that this case comes within the cases cited in which it has been held that agreements calculated to impede the regular administration of justice are void as against public policy." This raises a question which, though it had been decided in the way for which plaintiff contends, would not have availed him anything, seeing that there was quite sufficient in the case without it to warrant binding instructions for the defendant. "Binding instructions entered for good reasons will not be disturbed because the court relied Holmes v. Traction Co., upon wrong reasons." 199 Pa. 229, 48 Atl. 974. At the Trespass for personal injuries. close of plaintiff's testimony a nonsuit was entered which the court subsequently refused to take off for the following reasons given by Wessel, J., for entering it: At the time of the accident involved in this case, plaintiffs resided at No. 34 North Redfield street, which is a thoroughfare extending in a northerly and southerly direction in West PhilaSalford street is andelphia; their home being located between Market and Filbert streets. other thoroughfare running parallel to and about one-half square east of Redfield street. About 8 o'clock in the evening of August 9, 1916, the father, Charles M. Cressman, was seated with some of the other members of his family on a porch in the rear of his residence. He sent his son, John H. Cressman (who was eight years of age on December 2, 1916), to the The northwest corner of Salford and Market streets for the purpose of purchasing ice cream. Here there was no cause of action. The plaintiff was not temporarily suspended from exercising his office or place, but was finally discharged from the city's employ-boy proceeded from his home out the back gate The northwardly to Filbert street, then over to Salment. This much is not questioned. effect was to dissolve and terminate all re- ford street, and was walking in a southerly direction upon that street toward Market street. lations between the city and him in the mat- Defendant's one-horse covered wagon was proter of the employment in which he had ceeding northwardly across Market street. Two served. A subsequent re-employment of the boys were sitting in the wagon looking toward Market street. When the horse's head had plaintiff in the same service would be a new contract creating new duties and obliga- reached a point in Salford street about ten feet tions having no relation whatever to the north of the north crossing of Market street, former contract. The legality of the dis- the child started to step off the curb. At that charge and the proceedings which led up to time the head of the horse was three feet from the child and the horse was proceeding on a trot. Instantly thereafter the child came in it were never challenged. Whether the recontact with the horse and was injured. The lease executed by the defendant was valid is a question aside from the case, and we do horse was stopped after it had traveled about five feet further. Under these circumstances I not feel called upon to discuss it. do not see how defendant can be held liable. be The judgment is affirmed. While contributory negligence cannot charged against this eight year old child, nevertheless, before either of the plaintiffs are entitled to recover, they must submit some evidence of negligence on the part of this defendant. That, in my opinion, they have failed to do. For that reason, I sustain the motion and enter a nonsuit. (263 Pa. 567) CRESSMAN et al. v. LAKOFF. (Supreme Court of Pennsylvania. 1919.) MUNICIPAL CORPORATIONS Feb. 17, 706(6)—INJURY IN STREET CONTRIBUTORY NEGLIGENCE In an action for personal injury to a boy of eight years from being run over by a horse in a street, where it appeared that he stepped off the sidewalk when horse's head was but three feet away as it was proceeding at a trot, and that horse was stopped after it had traveled about five feet further, a nonsuit was properly entered. Appeal from Court of Common Pleas, Philadelphia County. The court subsequently refused to take Plaintiffs appealed. off the nonsuit. Argued before BROWN, C. J., and MOSCHZISKER, FRAZER, WALLING and KEPHART, JJ. John J. McDevitt, Jr., and Harry A. Gorson, both of Philadelphia, for appellants. William Linton and Harry A. Mackey, both of Philadelphia, for appellee. PER CURIAM, The material facts in this case appear in what was said by the learned Trespass for personal injury by John H. trial judge in sustaining defendant's motion It was properly entered, for Cressman, by his father and next friend, for nonsuit. Charles M. Cressman, and by Charles M. there was no evidence of any negligence on Cressman in his own right, against Isaac the part of the defendant which contributed Lakoff individually, and trading as Cross to the injuries sustained by the minor plainKeys Furniture & Storage Company. From tiff. an order refusing to take off a compulsory Judgment affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Evidence that a passenger on a ferryboat left the ladies' cabin when boat approached the slip and moved forward on the deck, lost her balance, fell, and was injured when the boat collided with the slip, causing a slight jar and then a violent collision, justified the submis- (Supreme Court of Pennsylvania. sion of her contributory negligence to the jury. (264 Pa. 68) WALKER v. WALKER et al. March 3, GRANT OF 1919.) Appeal from Court of Common Pleas, Phil- 1. APPEAL AND ERROR 977(3) adelphia County. Trespass by Henrietta Lipman against the Delaware River Ferry Company of New Jersey to recover damages for personal injury sustained while a passenger on defendant's ferryboat. From a judgment on a verdict for plaintiff after a remittitur, defendant appeals. Affirmed. NEW TRIAL-ABUSE OF DISCRETION. The court can abuse its discretionary power as to the law, as well as to the facts in passing on an application for a new trial, and the ordering of a new trial merely to correct a matter needing no correction, and which is in entire cretion warranting the setting aside of the oraccord with the law, would be an abuse of dis der. 2. APPEAL AND ERROR 979(2)—GRANTING OF NEW TRIAL-REVIEW. The appellate court will not review trial court's discretion in granting a new trial because of its opinion from the admitted facts before it that an injustice had plainly been done to plaintiff, although it was also of opinion that on the case presented its direction of a verdict valid legal reasons were shown for the granting for defendant was clearly right, and that no of a new trial. The testimony for the plaintiff was to the effect that she got on a ferryboat at Kaighn's Point, Camden, secured a seat in the ladies' cabin, and remained in that seat until the boat approached Philadelphia. The outside doors of the cabin were opened, and some of the people in the cabin proceeded to move forward. When the landing was attempted, the pilot did not succeed in entering the slip, but struck the piling, and, having backed out into the channel, made a second effort to land, in the course of which the outside end of the piling was struck, which resulted in sufficient motion to the Trespass by May L. Walker against T. W. boat to throw the plaintiff off her balance Walker and the Walker Grape Products Comand caused her to fall with another passen-pany, for alleged wrongful removal of mager on top of her. It was alleged that she was injured as a result of the fall. A verdict was rendered for the plaintiff for the sum of $6,000, upon which judgment was entered. The defendant moved for judgment non obstante veredicto, and also for a new trial, both of which motions the court in banc refused. The plaintiff filed a remittitur subsequently remitting all sums from the verdict in excess of the sum of $2,999. Argued before BROWN, C. J., and MOSCHLISKER, FRAZER, WALLING, and KEPHART, JJ. Appeal from Court of Common Pleas, Erie County. chinery and for mesne profits for use of premises. Verdict for defendants on binding instructions and judgment thereon, and from the granting of a new trial defendants appeal. Affirmed. See, also, 254 Pa. 220, 98 Atl. 890. Argued before STEWART, FRAZER, WALLING, SIMPSON, and KEPHART, JJ. John B. Brooks and Charles H. English, both of Erie, for appellants. J. M. Sherwin and W. S. Carroll, both of Erie, for appellee. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes FRAZER, J. [1] The court below gave binding instructions for defendants, and subsequently, on plaintiff's motion, granted a new trial. From the latter action defendants have appealed. In such case, while this court has power to entertain the appeal, the action of the lower court will be reversed only in clear cases of abuse of discretion. We have said the court can abuse its discretionary power as to the law, as well as to the facts in passing on an application for a new trial, and that the ordering of a retrial, for the mere purpose of correcting a matter needing no correction, but being in entire accord with the law, would be such abuse of discretion warranting setting aside the order. First National Bank of Birmingham v. Fidelity Title & Trust Co., 251 Pa. 536, 97 Atl. 77; Danboro, etc., Turnpike Road v. Bucks County, 258 Pa. 391, 395, 102 Atl. 171. [2] Here plaintiff sued in trespass to recover mesne profits for the use of premises held by defendants, together with damages for the value of machinery removed from the property by them between the date of the verdict in a previous action of ejectment (Walker v. Walker, 254 Pa. 220, 98 Atl. 890, where it was determined the title to the property was in plaintiff) and the day on which defendants finally surrendered possession of the premises. The trial resulted in binding instructions for defendants, for the reason, as stated by the trial judge, there was no evidence to connect one of the joint defendants with the transaction, and in a joint action there could be no verdict against one. On motion of plaintiff a new trial was granted without reason given at the time, subsequently, however, on a motion of defendants to strike off the order making the rule absolute, the court filed an opinion, in which it stated inter alia: ed in a court of justice, and while it is human nature to say 'it served them right,' it is not the province of a court, as we conceive it, to * We were and are sanction a wrong. therefore of opinion that this court could not, without injustice to plaintiff, have refused her a new trial." While it appears the court below was of opinion, on the case presented, its action in directing a verdict for defendant was clearly right, and no valid legal reasons were produced to warrant the granting of a new trial, yet the court was also of opinion, from the admitted facts before it, that an injustice had plainly been done plaintiff. The case is therefore not one in which the action of the court below was based on legal reasons, but on equitable grounds, and because the court believed an injustice had been done plaintiff. In such case the policy of this court has been not to interfere with the discretion of the court below except in extreme cases. The court below was apparently of opinion that since the title to the property had been adjudged to be in plaintiff, she was justly entitled to reimbursement for its loss, if any, and should not be deprived of the sum due her because of technical objection. The judgment is affirmed. (264 Pa. 9) PERMUTIT CO. v. WALLACE. (Supreme Court of Pennsylvania. Feb. 17, 1919.) 1. SALES 354(3)-ACTION FOR PRICE-AFFIDAVIT OF DEFENSE-SUFFICIENCY. In action for balance of price of water filter delivered under contract for filter 7 feet 6 inches inside diameter and 16 feet high, with a stated capacity, an affidavit of defense, averring delivery of one of different capacity and of 14 feet 3% inches "outside height from the bottom to the top of the swell of the top and bottom," but not averring that in the trade a 16-foot filter meant 16 feet from "bottom to the top and swell," or that it did not have stated capacity, or as to inside diameter, was insufficient. "We believe that we were absolutely right in giving binding instructions to the jury to find for defendant. We believe there was no legal reason why a new trial should have been granted. We believe that it was legal and proper for the court to give binding instructions for the defendant. We also believe that the affidavits as to after-discovered evidence which accompanied the motion for a new trial were unworthy of belief. We did not believe them, and we do not believe now, that it was after-discovered evidence at all. In action for balance of price of a water But he [defenant] was acting for his wife, who was plain- filter plant, defendant's contention that, betiff, who, however, knew little about the prepa-issued by architect, his relations with defendfore the voucher authorizing final payment was her. ration of the case, and this court had previously found, and the Supreme Court had affirmed that finding, that the property sued for belonged to An injustice, therefore, has been done her. So we are confronted with this anomalous condition, viz.: That on the one side every proceeding thus far has been properly and legally taken, and on the other side that we are convinced that T. W. Walker took this property, sold it, and appropriated the proceeds to his In other words, injustice has prevail own use. 2. SALES 345-ARCHITECT'S CERTIFICATE— AUTHORITY. ant had ceased, and he could not furnish a binding certificate, was no defense, where amount certified under contract was in fact due at a time stated therein. Appeal from Court of Common Pleas, Philadelphia County. Action in assumpsit by the Permutit Company against Richard L. Wallace, trading as (107 A.) Richard L. Wallace & Co., to recover balance filter delivered is therefore not in accord of purchase price for a filter plant. Rule for judgment for want of a sufficient affidavit of defense made absolute, and damages assessed at $2,000.54, and defendant appeals. Affirmed. Argued before STEWART, MOSCHZISKER, FRAZER, WALLING, and SIMPSON, JJ. Joseph W. Kenworthy and Caroline K. Kenworthy, both of Philadelphia, for appel lant. George J. Edwards, Jr., and Hazleton Mirkil, Jr., both of Philadelphia, for appellee. FRAZER, J. This appeal, by defendant, is from the action of the court below making absolute a rule for judgment for want of a sufficient affidavit of defense in an action for the balance of the purchase price of a water softening filter plant. [1] The contract called for installation of a filter 7 feet 6 inches inside diameter and 16 feet high, with a guaranteed capacity of 100,000 gallons in 12 hours; the apparatus, materials, and installment to be subject to the approval and satisfaction of defendant's mill engineer and architect; acceptance of the apparatus to be on written notice from the architect. The contract price was $6,570, to be paid: $3,000, on delivery of the materials at defendant's plant; $1,600, 60 days thereafter, and the balance in 90 days. Plaintiff's statement averred that on January 15, 1916, it delivered all necessary materials at defendant's plant, and received the sum of $3,000 upon certificate of the architect, as per agreement, and that on April 24th following it received a further sum of $1,600, pursuant to certificate of the architect issued March 15th. On April 15, 1916, a further certificate for the final payment was given by the architect, who called attention of plaintiff to the fact that the provisions of the contract did not contemplate delay in settlement until the equipment was in service, and that payment of the final installment must not be considered as acceptance of defective work, or relieve from the guaranty of the operation of the plant. The affidavit of defense avers plaintiff failed to deliver a filter of the required dimensions, but instead delivered one of a different capacity and size, namely, 14 feet 3% inches "outside height from the bottom to the top of the swell of the top and bottom," whereas plaintiff agreed to deliver a filter 16 feet in height on the main part, not inclusive of the swell of the top and bottom, and "the with size, measurement or capacity with the filter which plaintiff agreed to deliver." Reference to the contract fails to confirm this allegation. That writing merely calls for a filter 16 feet in height. There is no averment that in the trade a 16-foot filter meant 16 feet from the "bottom to the top of the swell." We find no explanation of this equivocal statement. Nor does the affidavit give the inside diameter. Neither is it alleged the filter did not have a capacity of 100,000 gallons in 12 hours as provided in the contract. The same general vague and defective aver ments appear in the statement of counterplaint. Such allegations are entirely too evasive and indefinite to form the basis of a conclusion that the filter furnished by plaintiff was not substantially identical with the one described in the contract. In view of the insufficiency of the affidavit to establish a failure to deliver the filter in accordance with the agreement, consideration of the insufficiency of the excuse for delay in rescinding the contract is unnecessary, as no ground for the rescission appears. [2] Defendant also alleges that before the voucher authorizing final payment was issued by the architect his business relations with defendant had ceased, and he was at the time without authority to furnish a certificate and bind defendant. The amount certified under the contract, however, was, in fact, due, as shown above, accordingly no adequate defense was made to appear. Payment was not in any sense dependent upon the acceptance of the apparatus by defendant. In fact, the form of voucher expressly provided that payment should not be considered as an acceptance of defective work. The money became due absolutely by the terms of the contract within a stated time after delivery of the materials on the ground, and if, as averred by defendant, the architect was no longer in his employ, defendant would not be relieved of his obligation to pay by the absence of such certificate. This obligation was recognized by defendant in his letter of April 26, 1918. Accordingly, he was not harmed in any manner by the act of the architect even though committed without authority and after his employment by defendant had terminated. Regardless of this question, however, inasmuch as the averments referring to the nondelivery of the device contracted for are insufficient, and consequently the money actually due, the question of authority of the architect becomes immaterial. The judgment of the court below is affirmed. (264 Pa. 1) FABER V. GIMBEL BROS. (Supreme Court of Pennsylvania. Feb. 17, 1919.) 1. DAMAGES 173(2) PERSONAL INJURYDECREASED EARNING CAPACITY. In action for personal injury, evidence of plaintiff's earnings from small automobile repair business in which he was a partner, before and after accident, was admissible to show decreased earning power, where business, having only a nominal capital and a few tools, etc., required plaintiff's entire time and labor, so that his income was substantially the reward of his labor. 2. DAMAGES 167 - PRESENT VALUE - EVIDENCE-TABLES. In action for personal injury, tables showing present value of fixed sum of money, payable in weekly installments for 29 years, plaintiff's expectancy according to mortality tables, was admissible, where injury caused only a partial impairment of earning capacity, as well as in cases of total disability. 3. APPEAL AND ERROR 1060(1)-HARMLESS ERROR ERRONEOUS STATEMENT BY COUN SEL. The inaccurate use of figures by plaintiff's counsel in addressing jury as to use of value tables was no ground for reversal, where it did not appear that jury were misled or adopted counsel's illustrative method, and where jury had tables before them while deliberating, and could see present value of a sum for a given number of years. invested was $800, which was expended for necessary tools, fixtures, and materials, each contributing one-half the required amount. Plaintiff testified he realized from $35 to $40 a week from the business after all expenses were deducted, and as a result of his injuries was unable to perform work requiring physical strength, but visited his place of business, with more or less regularity, with the aid of crutches. The firm was dissolved shortly after the accident, plaintiff purchasing the interest of the partner for $150, the partner also receiving a portion of the tools used in the business. Following the dissolution of the firm plaintiff employed a workman, whom he paid $20 a week, and had left from $10 to $15 weekly for himself, as the net earnings of his business. Defendant objected to this testimony as proof of earning capacity, averring it permitted a plaintiff to show net profits derived from a business, contrary, as alleged, to the general rule of law heretofore laid down by this court. It is apparent, however, that returns from business, under the circumstances of this case, were not profits in a technical sense derived from investment of capital, but were the direct result of the personal labor and skill of plaintiff in conducting his business. The capital invested was nominal merely, and represented the purchase of tools and materials, and also such fixtures as were necessary and incident to the employment. The income derived depended solely upon the use of the Appeal from Court of Common Pleas, tools for the purpose intended and the elePhiladelphia County. Trespass for damages for personal injury by Morris Faber against Gimbel Bros. dict for plaintiff for $15,500, on which judgment was entered, and defendant appeals. Affirmed. ment of personal labor and skill on part of In other plaintiff and his partner in performing the labor incident to the business. Verwords, the income derived was substantially the fruit or reward of their labor, the price for services performed. This does not conflict with the general rule laid down in Goodhart v. Penna. R. R., 177 Pa. 1, 15, 35 Atl. 191, 55 Am. St. Rep. 705, and followed in many subsequent cases, to the effect that loss of profits of a business cannot be considered as an element of damage, but is a Argued before STEWART, FRAZER, WALLING, SIMPSON, and KEPHART, JJ. Ralph B. Evans, Hampton L. Carson, and W. W. Smithers, all of Philadelphia, for appellant. Augustus Trask Ashton and Victor Frey, well-known exception, based on a recogniboth of Philadelphia, for appellee. FRAZER, J. Plaintiff sued to recover damages for injuries sustained from being run over by defendant's motor truck. The trial resulted in a verdict in plaintiff's favor. It is conceded the question or responibility for the accident was one for the jury, and the only questions discussed in this appeal relate to the measure of damages. [1] The facts are as follows: Plaintiff was engaged in repairing automobile radiators in partnership with another. Both members of the firm gave their entire time to the business, and together performed all repair work intrusted to them. The capital tion of the fact that in no other way can the earning power of one engaged in a small business, requiring his entire time, labor, and skill, and having no earning power except that resulting from profits derived from such labor and skill, be shown. Boggess v. B. & O. R. R., 234 Pa. 379, 83 Atl. 356; Gilmore v. Phila. Rapid Transit Co., 253 Pa. 543, 550, 98 Atl. 698. [2] Objection is made to the admission in evidence of a table showing the present values of a fixed sum of money, payable in weekly installments during a period of years from 1 to 29, the latter being the expectation of life of plaintiff according to the mortality tables. Appellant concedes tables of |