Potter vs. Pittsburgh Railways Company.

individual and a corporation. I want to impress that upon your minds. You are not to come to the conclusion that because this accident happened the Railways Company ought to pay for it."

As to specification "a," we are unable to discover the error of which counsel complain. Stress is placed upon the use of the word "suggestions,” but the sense in which the word was used is so obnoxious that we cannot conceive of any jury inferring that it meant that the jurrors might "suggest" facts not in evidence.

Specification "b" standing alone might possibly be misleading, but we do not think it was. If this excerpt is read in connection with the clause immediately preceding, and especially in connection with the instructions immediately following, we think it is apparent that the jury was not misled.

Specification "c" charges that the Court in attempting to state the substance of the testimony, fell into error in saying that the injured child "crossed over at least one track, that is, the inbound track," and that she "stepped back on the inbound track and was struck by the car approaching the City." In describing how the accident happened, the witness, Emma Potter, said: "And when I got on the inbound track I saw a car on the outbound track, and I heard two bells for it to start and that made me stop until it would go on up, so I could cross the track; and while I was standing there wating for it to go by, the other one hit me; and I heard no bells nor nothing, and didn't see the car." On cross-examination she was asked if the outbound car had come to a stop and replied that she didn't know, but thought it had. She was then asked: "Q. It was standing there and you heard the two bells for it to go on, and you wouldn't take a chance to run in front of that car, would you? A. No, sir. Q. That is the reason you stood on the inbound track? A. Yes, sir. Q. You didn't see the other car that struck you at all? A. No, sir.

Farther on in her testimony she described her position with reference to the car that she said was on the outbound track, saying that she was 'up from the front, up towards Homestead. * * * I was ahead of the car," meaning, as we understood, that she was not opposite the outbound car, but a little farther towards Homestead. She was also interrogated and answered as follows: "Q. I thought you said you waited, you heard the bells and knew it was going to start, and that is the 'reason you would not go in front of it. A. I did. Q. Where were you when you heard the bells? A. I think I was about on the track. I don't know whether I was right on the track or not, but I was near it-the inbound track. After testifying on cross-examination that she did not know how long she was standing on the track, and saying that "it wasn't a very long time, but it wasn't a very short time either," she was asked: "Q. How far over the first rail did you get before you stopped? A. I don't know, but I think it was between the two rails. Q. You don't know? A. Just exactly how far over the rail I was? Q. How many steps did you take over it, do you remember? A. No, sir; I do not. Q. You don't know whether you were just one step over it or two steps over it, or how many, do you? A. No, sir; all I know that I was over. Q. You were over the track? A. Yes, sir."

In the light of this evidence we are unable to see that any harm could possibly result from the statement that the witness had crossed the track. She declined to go farther when she heard the two bells, and whether she stepped back or was not yet off the outbound track and merely stood in the track, could make no material difference. The alleged error did, not seem to attract the attention of either counsel, as no comment, or request to correct the erroneous statement, was made. If we were convinced that the

Potter vs. Pittsburgh Railways Company.

language complained of was detrimental to plaintiff's case, or did we even entertain serious doubt as to whether it was in any degree prejudicial to her cause, we would grant a new trial regardless of whether the alleged error should have been called to our attention when made.

Specifications "d” and “e” do not require any comment. The testimony, as we recall it, showed the difference in testimony to which we referred.

We see no reason why the language, concerning which complaint is made in specification "f," should in any respect be modified. Counsel for plaintiff and defendant analyzed and commented upon the testimony fully, fairly and forcifully. The injured girl was allowed to tell her story of the accident in her own way, and did so with exceptional clearness for one of her age. She answered all questions promptly. Her counsel brought out every material fact in examining and cross-examining witnesses, and, as stated, presented their client's cause with clearness and force. We are unable to discover any sufficient reason to sustain plaintiff's motion. New trial refused.

Arbitration

Homestead Nest of Owls vs. Abels.

Absence of Arbitrator · Selecting New Arbitrator June 16, 1836.

Act of

In an arbitration under the Compulsory Arbitration Law, one arbitrator did not appear. The other two proceeded to hear the case and made an award. Held, that the award should be set aside, as under Section 18 of the Compulsory Arbitration Law a third arbitrator must be chosen before proceeding.

Sur Rule to Show Cause Why an Award of Arbitrators Should Not Be Stricken Off. No. 1127 April Term, 1914. C. P. Allegheny County.

John B. McAdoo, for plaintiff.

E. K. Edmundson, for defendant.

SHAFER, P. J., April 17, 1915. The petition shows that arbitrators were chosen under the compulsory arbitration law, and that at the time of hearing two of the arbitrators appeared, and the third did not appear, and that the two arbitrators who did appear, without selecting a third arbitrator, proceeded to hear the case, against the protest of the petitioner, and so heard it and made an award which the petitioner now asks to have stricken off as contrary to law. The answer to the rule alleges that the arbitrator who was absent had previously notified the parties that he was not able to attend, and has since filed an affidavit to that effect, and that the arbitrators present requested counsel for the petitioner to choose a third arbitrator, which he did not do; and that thereupon the two arbitrators proceeded to hear the evidence and make an award.

Under this state of facts there would seem to be no question that the directions of the Compulsory Arbitration Act were not followed. Section 18 of that Act provides for the case where the whole number of arbitrators do not attend, and directs that if both parties are present they may agree upon a third arbitrator, and that if they are unable to agree the arbitrators present shall appoint a suitable person to fill the vacancy. As that was not done the award would appear to have been made without authority of law. The defendant points to the 22nd Section of the same Act as governing the matter, but that applies only to the proceedings where the

Homestead Nest of Owls vs. Abels.

arbitrators have heard the allegations and evidence of the parties, as appears from its position in the Act. We are of opinion that the award is invalid and should be stricken off.

The rule is, therefore, made absolute.

In re Portions of Act Creating State Board of Undertakers and Amendments. Undertakers-License- -Acts of June 7, 1895, and April 24, 1905.

Under the Act of June 7, 1895, as amended by the Act of April 24, 1905, creating a state board of undertakers and providing for the issuing of licenses to undertakers, a licensed undertaker may lawfully have a branch office in the county designated in his license and may also have branch offices throughout the State, and it is lawful for the state board of undertakers to issue duplicate licenses to an undertaker which can be displayed in a conspicuous place in his branch offices.

OFFICE OF THE ATTORNEY GENERAL.

Francis H. Thole, Esq.,

Counsel for State Board of Undertakers,

Philadelphia, Pennsylvania.

April 26, 1915.

Sir: Your communication of recent date propounding certain questions relating to the construction of certain portions of the Act creating the State Board of Undertakers and the amendments thereto has been duly considered. The questions are as follows:

1. May a licensed undertaker lawfully have branch offices in the county designated in his license?

2. May a licensed undertaker lawfully have branch offices throughout the State of Pennsylvania?

3. Is it lawful for the State Board of Undertakers to issue a duplicate, or duplicates, of a license so that the licensee shall be enabled to display said license in a conspicuous place in the branch office, or offices?

The State Board of Undertakers was created by the Act of June 7, 1895, P. L. 167. By the Act of April 24, 1905, P. L. 299, the operation of the Act was extended from cities of the first, second and third classes to the whole Commonwealth. Some other amendments were also made, not necessary to consider in the present inquiry.

Inquiries 1 and 2 may be answered together.

1-2. These questions arise by reason of the following language of Sections 5 and 6 of the Act as amended.

Under Section 5 of the Act as amended, it was the duty of any person, persons or corporations engaged in the business of undertaking, etc., to cause within one year after the passage of the Act, "his, her, their or its name or names, residence and place of business, to be registered with said Board * * * ""

Section 5 of the Act as amended, provides for the licensing of persons or corporations thereafter so engaged in the said business of undertaking, for the registration of persons receiving such license, and that such person, persons or corporation "shall display said license in a conspicuous place in the office or place of such licensee."

The amendments did not affect the quoted language in these two sections, being the same as in the original Act of 1895.

It is necessary to understand the nature and purpose of the Act creating the State Board of Undertakers, in order to answer these inquiries.

The purpose of the Act, according to its title, is "To provide for the better protection of life and health by diminishing the danger from infectious and contagious diseases

In re Portions of Act Creating State Board of Undertakers and Amendments.

Section 6 of the Act provides for licensing of persons who engage in this business, who are "possessed of skill and knowledge of said business of undertaking, and have a reasonable knowledge of sanitation, preservation of dead, disinfecting the bodies of diseased persons, the apartment, clothing and bedding in cases of death from infectious and contagious diseases."

The validity of the Act was considered and upheld in Commonwealth vs. Hanley, 15 Superior Court, 271. The Court said, at page 278: "The regulation of such a business, by requiring those who engage in it to have that skill and knowledge, the possession and use of which will result in diminishing the dangers from such diseases and the lack of which may result in the spread of them, is clearly a legitimate exercise of police power."

The primary object and main purpose, therefore, of this legislation is to safeguard the health of the citizens of the State by licensing only such persons to engage in this business who possess the necessary knowledge, skill and ability to do so as required by law.

The Act does not impose a tax on the business of undertaking, and its operation is in nowise affected by the amount of business done, or the number of places where it is done.

The designation of the place of business, residence, etc., required by the Act is a mere administrative incident necessary for keeping proper records and statistics.

It is not the place that is licensed, but it is the person of demonstrated ability who is licensed.

Section 6 of the Act of 1895 as amended by the Act of 1905 (there being no change in the amendment with respect to this language), provides, that after due examination of the applicant, etc., "the Board shall issue to said applicant or applicants, upon payment of a fee of twenty-five dollars, a license to practice said business of undertaking, and shall register such applicant or applicants as duly licensed undertakers."

The license "to practice said business of undertaking" is not restricted by the Act to any particular city, county or place. It is a license to practice the business of undertaking in any part of the State.

"A license issued by a State to pursue a certain calling enables the licensee to pursue such calling in any county of the State." 25 Cyc., 624, citing Latta vs. Williams, 87 N. C., 126.

Furthermore, Section 8 of the Act of 1895, which is not affected by the amendments contained in the Act of 1905, provides:

"Section 8. Every such license shall specify by name the person, persons or corporation to whom it is issued and shall designate the particular place or places at which the business shall be carried on."

In my opinion, therefore, a licensed undertaker may lawfully have branch offices in any part of the State.

3. Relative to the third inquiry: Inasmuch as it is necessary for undertakers to "display a license in a conspicuous place in the office or place of business of such licensee," there is no reason why the State Board of Undertakers should not issue duplicate or duplicates of the original license for that purpose. It is my opinion that it is lawful for the State Board of Undertakers to do so. Indeed, a licensed undertaker, having the right, under this opinion, to have branch offices, it would be necessary in such case for the Board to issue duplicate licenses for "conspicuous" display, as required by the Act.

Very truly yours,

FRANCIS SHUNK BROWN,
Attorney General.

Rossi vs. Commonwealth of Pennsylvania.

Liquor- -Sale of- -Interstate Commerce- -Conviction Under the Act of May 13th, 1887-Federal Law of August 8th, 1890.

A liquor vendor licensed in a bordering Ohio county went into an adjoining Pennsylvania county and took an order for liquor with the understanding that it should be thereafter delivered from his stock in Ohio to the residence of the purchaser in Pennsylvania. He returned to Ohio, loaded the goods upon his own wagon and delivered the liquor at the residence of the purchaser in pursuance of the contract.

Held:

That the sale was negotiated in Pennsylvania, but contemplated and required for its fulfillment a transaction in interstate commerce which afterwards took place, with the resulting delivery in Pennsylvania, and that this was not a sale within the meaning of the Act of Congress of August 8th, 1890, within the State of Pennsylvania in such manner as to permit a conviction for selling liquor without a license under the Pennsylvania Liquor Law of May 13th, 1887.

H. C. McClintock, of Young, McClintock & Painter, for plaintiff in error. Thos. W. Dickey and Clyde V. Ailey, District Attorney, for defendant in error.

SUPREME COURT OF THE UNITED STATES.

Mr. Justice PITNEY delivered the opinion of the Court.

Plaintiff in error was convicted in the Court of Quarter Sessions of Lawrence County, in the State of Pennsylvania, of the crime of selling intoxicating liquors in that county without a license, contrary to Section 15 of an Act of May 13, 1887 (P. L. p. 113), which declares: "Any person who shall hereafter be convicted of selling or offering for sale any vinous, spirituous, malt or brewed liquors, or any admixture thereof, without a license, shall be sentenced," etc. The Superior Court affirmed the conviction (53 Pa. Sup. Ct., 210), the Supreme Court of the State refused an appeal, and this writ of error was allowed.

The facts are these; Plaintiff in error is a liquor dealer having his place of business in the County of Mahoning, in the State of Ohio, which immediately adjoins Lawrence County, Pennsylvania. He had no license to sell in Lawrence County, nor any place of business there, but went into that county and there took an order for liquor, with the understanding that the liquor should be thereafter delivered from his stock in Ohio to the residence of the purchaser in Pennsylvania. He returned to Ohio, there loaded the goods upon his own wagon, and either by himself or his employee drove across the state line and delivered the liquor to the residence of the purchaser pursuant to the contract. Thus the sale was negotiated in Pennsylvania, but contemplated and required for its fulfillment a transaction in interstate commerce, which afterwards took place, with resulting delivery in Pennsylvania.

The charge, as will be observed, was selling, not offering for sale. And it is admitted that by the Pennsylvania decisions the act of taking orders for future delivery is not punishable under the statute cited, or any other, and that it is not the making of an executory contract but the executed sale that is punishable. Commonwealth vs. Smith, 16 Pa. Co. Ct., 644, 646, 647; Star Brewing Company's License, 43 Pa. Sup., 577, 580; Commonwealth