(107 A.) (244 Pa. 193) 1. GARNISHMENT 110- INDEBTEDNESS TO Where defendant contractor was building street railroad for garnishee, and on settlement of their accounts after plaintiff's attachment execution issued, it was found that defendant had inadvertently received bonds of garnishee before attachment in excess of what was due him, and though defendant's credits to garnishee were not made until after attachment, judgment was properly rendered for garnishee. 2. GARNISHMENT 110 — SUBSEQUENT SETTLEMENT OF ACCOUNTS BETWEEN DEFENDANT AND GARNISHEE. Vandegrift Construction Company and others, with garnishment against Ephrata & Lebanon Traction Company. Verdict and judgment for the garnishee, and plaintiff appeals. Affirmed. Argued before BROWN, C. J., and STEWᎪᎡᎢ, MOSCHZISKER, WALLING, and KEPHART, JJ. Wm. Y. C. Anderson, of Philadelphia, and Warren G. Light, of Lebanon, for appellant. Henry O. Evans, of Pittsburgh, for appellees. MOSCHZISKER, J. March 4, 1915, the American Surety Company of New York, plaintiff, a judgment creditor of Joseph A. Vandegrift, the defendant, issued an attachment execution, summoning as garnishee the Ephrata & Lebanon Traction Company, and another corporation, hereinafter referred to as the "railway company." Plaintiff in attachment execution could not contend that garnishee's bonds paid in excess of amount due from it to defendant contractor belonged to defendant, and that after attachment was served neither status of such bonds nor proceeds from their sale could be changed by a settlement of accounts between contractor and gar-present appeal) answered, denying it held nishee in which plaintiff took no part. 8. GARNISHMENT 110- OVERPAYMENT TO DEFENDANT-PROPERTY SUBJECT TO ATTACH MENT. If garnishee, at time of plaintiff's attachment execution was served, had overpaid defendant, contractor, and a balance of account was due garnishee in adjustment of balance, even after date of attachment, the repayment of excess to garnishee after sale of bonds would not make funds received by it subject to attachment, as they never really belonged to defendant. 4. GARNISHMENT 164 - PAYMENT TO DEFENDANT EVIDENCE. On attachment execution against traction company for which defendant contractor was working, a claim that an initial cash payment to which contractor was entitled under the contract had not been paid by garnishee held not sustained by plaintiff's evidence. The attachment was duly served, and the Ephrata & Lebanon Traction Company (with whose case alone we are concerned on the any property or owed any debts to defendant. When the matter came to trial, the jury found a verdict in garnishee's favor, upon which judgment was entered, and plaintiff has appealed. Defendant was engaged as a contractor in the construction of a street railway for the garnishee when, in an effort to collect a ten year old judgment, which plaintiff held against defendant, the present attachment issued. As a result, defendant, being unable to finance his contract, withdrew therefrom, and, at a settlement of accounts between him and the garnishee, which occurred March 11, 1915, it was discovered that he had been overpaid, in bonds of the latter, some $17,500. In other words, by the terms of the contract between defendant and garnishee, the former was entitled to receive from the latter, for work completed up to date of service of attachment some $126,800, whereas, through inadvertence, he had been paid, in round figures, $144,300; so that the garnishee not only held no property or credits of defendant, but, on the contrary, he owed it the amount of the overpayment, which was refunded by the brokerage firm, that had charge of marketing garnishee's bonds, 252(1)—RequestED INSTRUCTIONS transferring from defendant's to garnishee's 5. EVIDENCE 518-EXPERT TESTIMONY JOURNAL ENTRIES. In attachment execution against defendant contractor and railroad for which it had been working, where journal of garnishee railroad was produced at trial, but none other of its books were offered, it was not error to permit an expert bookkeeper to express opinion as to what journal entries indicated. 6. TRIAL -EVIDENCE. A point for charge is properly refused, where neither the evidence produced, nor that tendered, sustains the facts set forth in the point. Appeal from Court of Common Pleas, Lebanon County. account credits from the sale of these securities, amounting to $15,312.50, the bonds having been sold at defendant's orders prior to the attachment, although the transfer of credits, which likewise was made at the latter's direction, did not take place till after that date. In explanation of the overpayment, one Attachment execution by the American of garnishee's officers testified that to disSurety Company of New York against the pose advantageously of bonds, such as those For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes under discussion, they must be sold in sizable lots, within a comparatively short time. This witness suggested the bonds in question were paid defendant without strict regard to estimates, or work actually done, in order to get them on the market in such lots, "when the money would be paid out on construction work as it went along" and that, in following this course, the overpayment inadvertently occurred. Many of appellant's assignments criticize rulings, adverse to plaintiff, upon offers of testimony, and instructions to the jury, concerning the first payment made by garnishee to defendant on the contract. [4] In connection with this payment amounting to $34,000, it appears that the railway company (with whom defendant also had a construction contract, and who likewise was served as a garnishee) had close business relations with the garnishee in this case. The contract between garnishee and defendant provides that the latter shall be paid a consideration of $169,625, "consisting of $34,000 in cash and $155,000 of the company's first mortgage * bonds at a price of 872," these payments to be made on "semimonthly estimates of the proportionate amount of work performed, material and equipment delivered." Before any substantial work had been done, this first * [1-3] Plaintiff contends that, since the bonds were given defendant, they belonged to him and not to the garnishee, and, after the attachment was served, neither the status of such securities nor the proceeds from the sale thereof could in any manner be changed by a settlement of accounts between defendant and garnishee in which plaintiff took no part; therefore, when either the bonds or their proceeds were paid back to the garnishee, they were defendant's property and, as such, immediately became sub-payment of $34,000 was made by garnishee ject to the previously levied attachment. The real question upon which this branch of the case turns, however, is: Did the garnishee owe defendant a balance on the contract when the attachment was served? If it did not, then nothing in its hands became bound by the attachment; and (if as a matter of fact defendant was at that time overpaid), the balance of the account being due to garnishee, an adjustment, in good faith, of that balance, even after the date of the attachment, by paying back the proceeds from the sale of bonds inadvertently advanced to defendant, could not make the funds thus received by the garnishee subject to the attachment, for those bonds, in reality, never belonged to defendant. The facts on all the issues involved in the accounting between the parties, and the good faith of the repayment by defendant of the balance due the garnishee, were submitted to the jury and found in favor of the latter. The trial judge, summing up the issues in hand, said: "All this testimony has a bearing only upon whether the garnishee received these $17,500 in bonds, or the proceeds of these bonds, or a credit for the proceeds, at a time when Vandegrift did not owe them anything. If Vandegrift had been overpaid he owed them that overpayment. Now, if this amount was simply paid back to square that overpayment, then your verdict should be in favor of the garnishee in this case. On the other hand, if it was not paid back to square that overpayment, and if either these bonds, or the proceeds, or any part of the proceeds legally belonged to Vandegrift at the time of the attachment, or subsequent thereto, and were in the hands of the garnishee at the time of the service of the attachment, or subsequent thereto, then your verdict should be in favor of the plaintiff." This practically covers what was repeated in answers to points, also complained of; to defendant, in the following manner: August 3, 1914, a check of the railway company for $34,000 was given to garnishee, who, on the same day, gave its check to defendant for a like amount; and this, or the latter's check for a similar amount, was, on August 5, 1914, given to the railway company. All these checks were drawn upon the same trust company; and, from such fact, together with the further circumstance that the total capital stock of the garnishee amounted to exactly $34,000, plaintiff contends it could justifiably be found that this alleged first payment to defendant was "not in fact made"; and hence he insists that, in settling the accounts between garnishee and defendant, the sum of $34,000 ought to be deducted from the payments which the former claim to have been made to the latter. If this course were pursued, it would leave a considerable sum due and owing by garnishee to defendant, at the date of the attachment. To "attack the genuineness" of this alleg. ed first payment, plaintiff offered to show that, when the railway company gave the original check for $34,000 to garnishee, the former did not have any such amount on deposit, which offer the trial judge refused, together with other evidence relating to the facts stated by us in the last paragraph; but, accepting all these facts as though proved, since, at the time of the transaction in question, garnishee had no knowledge of the debt due by defendant to plaintiff, or that the latter was indebted to anyone, and since there was no formal allegation or offer to show that the circumstances attending the initial payment of $34,000 were either fraudulently conceived or put into execution for the purpose of defrauding plaintiff, or other creditors of defendant, such facts, even if proved, would not have been in themselves (107 A.) ment of $34,000 had not actually been made; and no other facts were either shown or tendered which, when taken with the testimony refused, would sustain a finding to that effect. "If the jury believed that the accounts of the Ephrata & Lebanon Traction Company, as between itself and Joseph A. Vandegrift, as contained in the journal of the said Ephrata & Lebanon Traction Company, are not true and correct in every material particular, and that such material entries were made for the purpose of fabricating evidence in its behalf and against the plaintiff's interest, the jury is justified in disregarding the defenses of the garnishee of either overpayment to Joseph A. Vandegrift, or of setoff against Joseph A. Vandegrift and the plaintiff." Since neither the evidence produced nor that tendered would sustain the findings set forth in this request, it was properly refused. True, the parties concerned in the initial payment made a departure from the contract terms at that time, in that such payment undoubtedly represented an advance to defendant for work which the estimates did not show to have been done then; but, in large operations, such departures are often made for the convenience of all concerned, and therefore this circumstance cannot be given the significance which plaintiff would attach to it; nor would the fact, if true, that actual money did not pass, have any special significance, for every oue familiar with financial affairs knows that most of the large business of the world is transacted by a system of credits. Here it was shown that the railway company had either the actual cash in bank or sufficient credit to meet its draft of $34,000, when the check was given to garnishee, and that, up-ments which complain of the refusal of teson the deposit of such check, the latter had an adequate balance to its credit when it made the payment to defendant. [5] The garnishee's journal was in court, under subpoena, and defendant called an expert bookkeeper "for the purpose of showing that the journal entries relating to the $34,000 transaction indicate there was no [such] payment made to Joseph A. Vandegrift." The court refused this offer; and subsequently in vindication of its ruling, stated: None of the authorities cited by appellant rules the facts at bar, nor is any novel point of law raised which requires discussion. We have disposed of all the important questions in the case. Since they are treated by us as though every material fact offered in evidence had been actually established by competent proof, it is not necessary to pass specifically upon the many assign timony; and, as to those which criticize the (264 Pa. 220) HANCOCK v. PHILADELPHIA & R. RY. CO.* 1919.) "The offer of the opinion of the expert was rejected for the reason that there was nothing before the court which was the subject of opin- (Supreme Court of Pennsylvania. March 24, ion evidence; the books of the company, with one exception, were not called for or offered, and these books might well have explained the entries and transactions to which they related without the opinion or conclusion of any expert." In this we see no error. MASTER AND SERVANT ~417(7)—WORKMEN'S Finding of Workmen's Compensation Board against employer's contention that deceased was engaged in interstate commerce, and to effect that coal cars on which he was working were being moved from mines to different yards in the subsequent shipments of cars outside the the state for the shipper's convenience, and that state were made after employé's death, is conclusive on court of common pleas. Plaintiff also attacks parts of the charge wherein the trial judge referred to the books of the garnishee as being carelessly kept, but stated that the latter was not in court to answer for "improprieties or irregularities in its bookkeeping except in so far as they might have a bearing upon the question of whether these bonds, or the proceeds of these bonds, or any part thereof, belonged to Vandegrift and reached the hands of the Proceeding under the Workmen's Comtraction company, subsequent to time of serv-pensation Act by Margaret L. Hancock ice of attachment." This in substance, is all of importance that the trial judge said to the jury upon the subject in hand, and it does not represent reversible error. [6] Finally, appellant complains that the court erred in refusing to affirm this point: Appeal from Court of Common Pleas, Schuylkill County. against the Philadelphia & Reading Railway Company. From a judgment affirming an award of the Workmen's Compensation Board, and dismissing the appeal therefrom, defendant appeals. Appeal dismissed, and award affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *Certiorari granted 250 U. S., 40 Sup. Ct. 54, 64 L. Ed. Argued before BROWN, C. J., and STEW-14. MASTER AND SERVANT 417(9)-WorkᎪᎡᎢ, WALLING, MOSCHZISKER, and MEN'S COMPENSATION ACT FAILURE TO KEPHART, JJ. MAKE NECESSARY FINDINGS-REMAND OF RECORD WITH DIRECTIONS. George Gowen Parry, of Philadelphia, and John F. Whalen, of Pottsville, for appellant. L. L. Frank, of Pottsville, and R. A. Reick, of Frackville, for appellee. On appeal from award of Workmen's Compensation Board, only findings and conclusions are before court for review, and where there are no findings upon controlling issues, it should remand record to board, with direction to make findings, instead of itself deciding issues upon the evidence, as Workmen's Compensation Act contemplates that all findings of fact be made by compensation authorities, and not by the courts. Appeal from Court of Common Pleas, Susquehanna County. Proceeding under the Workmen's Compen PER CURIAM. The sole contention of the appellant is that at the time the deceased was killed he was engaged in moving interstate commerce cars. This was a question of fact, and the finding of the Compensation Board was that the cars of coal in the train upon which the deceased was working were being transported from the mines to different yards within the state, for the convenience of the shipper, and that the subsequent ship-sation Act (P. L. 736) by Sarah E. Reilly, for ments of any of them upon which the de- herself and children, against the Erie Railceased had worked to a point without the road Company for compensation for the death state were made after his death, and after of claimant's husband. From a judgment the train crew with which he had worked reversing the action of the Workmen's Comhad severed its connection with the cars. pensation Board, affirming a finding of the This finding was conclusive upon the learned referee awarding compensation, claimant court below. Poluskiewicz v. Phila. & Read- appeals. Reversed, and record sent back to ing Coal & Iron Company, 257 Pa. 305, 101 common pleas, with direction. Atl. 638. Appeal dismissed, and award affirmed. (264 Pa. 329) REILLY v. ERIE R. CO. (Supreme Court of Pennsylvania. April 14, 1919.) Argued before STEWART, FRAZER, MOSCHZISKER, WALLING, and KEP. HART, JJ. Thomas A. Doherty, of Susquehanna, for appellant. William A. Skinner, of Susquehanna, for appellee. MOSCHZISKER, J. Sarah E. Reilly, on 1. MASTER AND SERVANT 416-WORKMEN's behalf of herself and children, claimed comCOMPENSATION ACT-INJURY WHILE ENGAG-pensation for the death of her husband, MarED IN INTERSTATE COMMERCE-FINDING BY REFEREE. In proceeding under Workmen's Compensation Act June 2, 1915, wherein defendant railroad contended that injury occurred while employé was engaged in interstate commerce, referee should have made finding as to whether injury occurred while employé was so engaged. 2. MASTER AND SERVANT 365-WORKMEN'S COMPENSATION ACT-INJURY WHILE ENGAGED IN INTERSTATE COMMERCE. No compensation can be awarded under the Where referee concluded that it was immaterial whether accident occurred while employé was engaged in interstate commerce, and failed to find whether injury occurred therein, Workmen's Compensation Board, upon appeal, should have held conclusion error, and either have made findings of fact upon a hearing de novo on that issue, or have sent record back to referee, with direction to find thereon. tin J. Reilly, which occurred April 28, 1916, as the result of accidental injuries in the course of his employment with defendant company. An award was approved by the Workmen's Compensation Board; but, when the record was removed to the common pleas, this was reversed, and the claimant has appealed. [1-3] Defendant has contended from the first that claimant's husband was killed while engaged in interstate commerce; but, without finding any of the facts attending the accident or those essential to a correct understanding and intelligent determination on review of the point thus put at issue, the referee reported the following conclusion: "Whether or not either the decedent or the defendant at the time the accident occurred were engaged in an act connected with interstate commerce, the claimants are entitled to and defendant is liable for compensation to the claimants, as provided in article III of the Workmen's Compensation Act of 1915." Of course this presents an erroneous view of the law. Messinger v. Lehigh Valley R. R. Co., 261 Pa. 336, 337, 104 Atl. 623. The appeal to the Compensation Board was (107 A.) the one at bar, in that the referee there found, as a fact, that the accident had happened in the course of interstate commerce, which finding was approved by the board, whereas here the referee erroneously held it to be immaterial whether or not the accident so happened, and neither he nor the board made any finding whatever upon that issue. The court below, under these circumstances, was not in a position to determine the controlling point in the case, nor are we. As a consequence, since this is a purely statutory proceeding, in which the relevant acts of assembly contemplate that all findings of fact shall be made by the compensation authorities, the record must be remanded for that purpose; but, so as to minimize the delay thus entailed we have disposed of this appeal with the utmost expedition, and a like course should be pursued by those fixed with re sponsibility below. on two grounds: (1) That the referee erred in the above-quoted conclusion of law; and (2) that he erred in failing to find as a matter of fact that claimant's husband was engaged in interstate commerce at the time of the accident. But the board did not properly pass upon either of these assignments. Instead of so doing, it contented itself with a meager review of the testimony, and the conclusion that the referee had not erred in failing to find "claimant's decedent was engaged in interstate commerce." The board should have held that its referee's ruling as to the immateriality of the interstate commerce feature of the case was error, and either found its own facts, upon a hearing de novo, or sent the record back to the referee, with directions to state all the circumstances attending the accident essential to an understanding of the issues involved, with an ultimate finding, based thereon, as to whether or not injury in the course of interstate employment was shown thereby. Flucker v. Carnegie Steel Co., 263 Pa. 113, 106 Atl. 192. [4] When the case came to the common pleas, the record was treated by mutual mistake of both court and counsel, as though the evidence was up for review, when, as matter of law, the findings and conclusions only were before that tribunal. McCauley v. Imperial Woolen Co., 261 Pa. 312, 320, 321, 104 Atl. 617. Since there were no findings, either subordinate or ultimate, upon the controlling point discussed in the opinion of the court below, namely, whether the employer and the employé were engaged in interstate commerce at the time of the accident, the record should have been remanded to the Compensation Board (Leary v. McIlvain, 263 Pa. 499, 106 (Supreme Court of Pennsylvania. March 24, Atl. 785), with directions to see that such findings were made and properly stated up-1. NAVIGABLE WATERS 36(1)—OWNERSHIP on the record (Gurski v. Susquehanna Coal Co., 262 Pa. 1, 104 Atl. 801; Hancock v. P. & R. R. R. Co., 107 Atl. 735, not yet officially reported). The assigments of error are sustained, the judgment is reversed, and the record is sent back to the common pleas, with directions that it forthwith remand so much thereof to the Workmen's Compensation Board as was sent up by that body; the latter being ordered to proceed in accordance with the law and proper practice, as outlined in this opinion and the relevant authorities therein cited. (264 Pa. 260) BLACK et al. v. AMERICAN INTERNA- 1919.) OF SOIL BELOW LOW-WATER MARK. Below the ordinary low-water mark of the Delaware river, the ownership of the soil is in the commonwealth. 2. NAVIGABLE WATERS 36(2)-NAVIGABLE RIVER-TITLE OF ABUTTING OWNER. The title of abutting riparian owners on the Delaware river extends only to ordinary low-water mark, subject to the rights of navigation, fishery, and improvement of the stream between high and low water marks. 3. NAVIGABLE WATERS 39(2)—RIPARIAN RIGHTS-FILLING OR OBSTRUCTING RIVER. In Messinger v. Lehigh Valley R. R. Co., supra, the referee stated an ultimate finding that, at the time of the accident, the "employer and employé were then engaged in interstate commerce." This "mixed finding of fact and law" (Mooney v. Lehigh Valley R. R. Co., 261 Pa. 339, 340, 104 Atl. 624), from some aspects a pure matter of fact (and so treated in Hancock v. P. & R. R. R. Co., supra), was adopted by the Compensation Board, and the latter's decision was affirmed The riparian owner on a public navigable by the common pleas. On appeal this court, river has no right to fill the river even to lowfollowing the McCauley Case, supra, refused water mark, or to place obstructions therein to consider the testimony, and held that, between high and low water marks, without exsince there were "no subordinate or underly-press authority from the commonwealth. ing findings" as to the character of evidence 4. NAVIGABLE WATERS upon which the ultimate finding rested, we could not enter upon an examination of the A riparian owner on a public navigable rivcorrectness of the latter, but would have to er becomes the owner of the natural accretions accept it as conclusive; hence we affirmed. to his land from the imperceptible deposits of The Messinger Case, however, differs from alluvion along his riparian front, but does not RIGHTS-ACCRETION. 44(1) RIPARIAN For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |