Leonhardt vs. Greene.

The motion for a new trial is refused.

The motion for judgment non obstante veredicto is refused, and judgment on the verdict for the plaintiff directed to be entered.

Waldeck vs. Waldeck.

Divorce Conflicting testimony-Measure of proof-Decree refused.

Libellant in a divorce proceeding testified that respondent "jammed her in the corner of the room," caught her by the throat, made a threatening demonstration with a revolver, kicked her out of the house on one occasion, "tried to choke her a hundred times" and frequently ordered her to leave his home. This happened only when he was intoxicated.

Respondent denied all these allegations and the undisputed evidence was that he had been an industrious workman for upwards of thirty years. Respondent called witnesses who testified that respondent was not a man given to intoxication and who denied that he abused his wife, neglected her or used abusive language to her.

Held, Testimony did not justify a decree in divorce and libel dismissed.

In Divorce. No. 759 July Term, 1914. C. P. Allegheny County.

M. A. Shapira, for libellant.

W. F. Stadtlander, for respondent.

HAYMAKER, J., June 25, 1915.-The libel charges cruel and barbarous treatment, and indignities to the person. At the time of the hearing the libellant was 56 years of age and the respondent was 54. They were married July 1, 1909, and were separated about one year previous to the filing of the libel. Libellant testified that within a month after marriage her husband swore at her continuously and called her vile names; that in a year after marriage he caught her by the throat and "jammed her in the corner of the room,' 'that he usually got drunk each Saturday night; that on one occasion he made threatening demonstrations with a revolver which she later took from him and hid for two years; that he kicked her out of the house on one occasion, frequently ordered her to leave his home and that he "tried to choke her a hundred times." She admitted that it was only while he was intoxicated that those things occurred.

The libellant called three witnesses and offered the deposition of two others who testified to his frequent state of intoxication, the use of vulgar language toward her on a few occasions and to his expressions of dissatisfaction with her generally. The libellant admitted that the defendant was and always had been an industrious and a hard working man.

The undisputed evidence is that he worked continuously for upwards of thirty years in the Ft. Wayne Shops in old Allegheny City, with scarcely the loss of a day, earning from $80.00 to $90.00 a month.

He squarely denied every accusation made against him by his wife and her witnesses and in addition called some twelve witnesses, a number of whom testified that he was not a man given to intoxication; others who claimed to have been in a position to know, denied that he abused his wife, cr used vulgar or indecent language to her, while others testified that the respondent neglected her household duties, gave much of her time to the management of rooming houses to the neglect of her husband, and indulged at times in the use of vulgar and indecent epithets against her husband. Taking the testimony as a whole we are of the opinion that it would not justify a decree in divorce, and therefore a decree is refused and the libel dismissed.

Life Insurance

Buchak's Administrator vs. Buchak.

-Substitution of Beneficiaries-Enforcing Payment.

Where a life insurance company has not exercised its option to make settlement under a "Facility of Payment" clause in its policy, and no rule of the company has been shown permitting the insured to substitute one beneficiary for another, nobody but the beneficiary named in the policy can compel payment of the benefit by the company after the death of the insured, notwithstanding the fact that the insured in his lifetime signed a paper authorizing payment by the company to another person.

Submission for judgment non obstante veredicto. No. 493 December Term, 1913. C. P. Fayette County.

W. Russell Carr, of Carr & Carr, for plaintiff.

George Patterson and A. C. Hagan, for defendant.

Reppert, Sturgis & Morrow, for Prudential Insurance Company.

VAN SWEARINGEN, P. J., June 1, 1915.-On March 18, 1912, Emer Buchak took out a policy of insurance on his life, for the sum of $430, in the Prudential Insurance Company of America. The policy stipulated that the amount of the benefit should be paid by the company "unto the executors or administrators of the insured," unless settlement should be made under a "Facility of Payment" clause in the policy which provided that, "The company may make any payment provided for in this policy to any relative by blood or connection by marriage of the insured, or to any other person appearing to said company to be equitably entitled to the same by reason of having incurred expense on behalf of the insured, for his or her burial, or, if the insured be more than fifteen years of age at the date of this policy, for any other purpose, and the production by the company of a receipt signed by any or either of said persons or of other sufficient proof of such payment to any or either of them shall be conclusive evidence that such benefits have been paid to the person or persons entitled thereto, and that all claims under this policy have been fully satisfied."

Emer Buchak died on December 1, 1912, having signed, in the meantime, a paper reading as follows: "March 27, 1912. The Prudential Insurance Company of America. I, the undersigned, insured under Policy No. 31,859,104 in The Prudential Insurance Company, hereby authorize the said company to pay the amount of benefits specified in said policy to Perl Buchak, related to me as wife." After the death of the insured Perl Buchak instituted an action against the insurance company to recover the amount of the benefit mentioned in the policy. The insurance company then presented a petition to court, admitting its liability for the payment of said sum of $430, but alleging that it had been notified by the administrator of Emer Buchak's estate that the money was due and payable to him as such administrator, and praying the court to require the claimant in the action brought and the administrator of the deceased to interplead. The matter then was so proceeded in that the insurance company was permitted to pay the money into court, and a feigned issue was framed with the administrator of the deceased as plaintiff and Perl Buchak as defendant to determine who was entitled to receive the fund.

In the pleadings and at the trial it was shown that Emer Buchak was married to Perl Buchak, nee Collins, on October 14, 1910, at Morgantown, W. Va. But it was alleged, and evidence in support of the allegation was offered, that Emer Buchak at that time had a lawful wife and child living a Turjasebes, Ung County, Hungary, where they still reside. There was evidence that Perl Buchak obligated herself for a portion of the funeral expenses of the deceased. At the close of the case the trial judge, who no longer is on the bench, gave the jury binding instructions to return a

Buchak's Administrator vs. Buchak.

verdict for the administrator of the deceased, reserving to the court the right to enter judgment non obstante veredicto on a point of law as to the force and validity of the paper signed by Emer Buchak in which he authorized the insurance company to pay the amount of the policy to Perl Buchak. No motion actually was filed for judgment non obstante veredicto, but the case has been submitted to the court for decision on the point of law reserved by the trial judge, and that is the only matter now before the court.

We are of opinion that the defendant in this issue is not entitled to judgment non obstante veredicto. The paper signed by Emer Buchak authorizing the insurance company to pay the money to Perl Buchak was no part of the contract between Emer Buchak and the insurance company. Perl Buchak was not a beneficiary named in the policy of insurance. No rule of the company has been shown permitting the insured to substitute one beneficiary for another. The contract was not that the insurance company would make payment "unto the executors, administrators or assigns" of the insured, but unto his "executors or administrators" only. The benefit under the policy was not even assigned to Perl Buchak, the writing being but a naked authority to the insurance company to pay the benefit to her, not accepted or acted upon by the company. The writing, therefore, in our opinion, as the case stands, is of no force or validity whatever as fastening a liability upon the company. No settlement was made by the insurance company under the "Facility of Payment" clause of the contract, or otherwise, and the only person now entitled to enforce payment by the company is the administrator of the estate of the insured. If the insurance company had made settlement under the "Facility of Payment" clause of the contract, which may be broad enough to have included payment to Perl Buchak, it would have been discharged thereby from any further liability on the policy, but it did not exercise its option to make settlement thereunder, and the only person who can compel payment by the company is the beneficiary named in the policy of insurance. Thomas vs. Prudential Insurance Company, 148 Pa., 594; Brennan vs. Prudential Insurance Company, 170 Pa., 488; Crone vs. Prudential Insurance Company, 11 Dist. R., 433; Cromwell's Estate, 14 Dist. R., 404; Lewis vs. Metropolitan Life Insurance Company (Mass.), 59 N. E. Repr., 439; Ferretti vs. Prudential Insurance Company (N. Y.), 97 N. Y. Supp., 1007; Marzulli vs. Metropolitan Life Insurance Company (N. J.), 75 Atl. Repr., 473; Prudential Insurance Company vs. Godfrey (N. J.), 72 Atl. Repr., 456. See also Althouse vs. Roth, 35 Pa. Superior Ct., 400; Logan's Estate, 16 Dist. R., 187.

And now, June 1, 1915, judgment for the defendant non obstante veredicto on the point of law reserved by the trial judge is refused, and it is ordered that judgment be entered on the verdict upon payment of the jury fee.

In re Application of Act of July 24, 1913, P. L. 965, to Wrapped Hams, etc. Commodities-Sale of Act of July 24, 1913-Package form.

Ham and bacon covered with paper, cloth or other wrapping and so sold, does not come within the provisions of Section 7 of the Act of July 24th, 1913, requiring the quantity of the contents to be marked on the outside of such package. OFFICE OF THE ATTORNEY GENERAL,

Replying to your inquiry under date of the 11th inst., relative to the application of the Act of July 24, 1913, P. L. 965, to wrapped hams, bacon and other commodities, I beg to advise as follows:

It is apparent that the object of the Act is to protect purchasers against fraud and deception as to the quantity or amount of the commodity purchased.

Section 7 of the Act provides:

"If in package form, the quantity of the contents shall be plainly and conspicuously marked on the outside of the package in terms of weight, measure, or numerical count: Provided, however, That reasonable variations shall be permitted; and tolerances and also exemptions as to small packages shall be established by rules and regulations made by the Chief of the Pennsylvania Bureau of Standards."

Your specific question is "under the provisions of that section do hams and bacon covered with paper or cloth, or sold in wrappings of any kind constitute a package within the meaning of the law?"

The answer to this question suggests itself very readily when it is borne in mind that the object of this legislation is to protect persons in the purchase of commodities "in package form," in other words, where commodities are sold per package, or by the package as such, as of a given weight or quantity, without weighing or measuring. In such case the law provides that "the quantity of the contents shall be plainly and conspicuously marked on the outside of the package in terms of weight, measure or numerical count," obviously, so that the purchaser will in that way be advised and know the quantity of the contents received. The term "package form" was accordingly intended to apply to such commodities as are put up in artificially determined sizes or quantities, fixed by the manufacturer or merchant, and intended to pass as such.

Section 1 of the Act provides "that the word 'commodity,' as used in this Act shall be taken to mean any tangible personal property sold or offered for sale." Hams and bacon, therefore, would come under this broad definition of the term "commodity;" but whether the sale of hams and bacon covered with paper or cloth, or sold in wrappings of any kind, would be a sale "in package form," would depend on whether or not they were sold per package as such or by separate and individual weight. You do not state the facts on this point necessary to specifically determine the question, but if I understand correctly, hams and bacon so covered or wrapped are not sold per package as such, the weights of the hams and bacon not being uniform, but are in each instance sold by weight per ham or bacon as wrapped, of which the purchaser is fully aware.

I am, therefore, of the opinion that as to hams and bacon covered with paper, cloth or other wrapping and so sold, the Act does not apply, and

In re Application of Act of July 24, 1913, P. L. 965, to Wrapped Hams, etc. in such case, it is not necessary that the quantity of the contents be marked on the outside of such package. The words "in package form" were similarly construed in reference to the same subject matter in the case of State vs. Swift & Co., 120 N. W., 1127 (Neb.).

The reasoning in this opinion applies to all other commodities referred to in your communication. If they are sold per package as such, "the quantity of the contents must be plainly and conspicuously marked on the outside of the package in terms of weight, measure or numerical count," as the Act provides; if they are wrapped merely for sanitary purposes and are not so sold, but in each instances are weighed, though with the container, covering or wrapper, of which the purchaser is fully aware, the Act does not apply. KUN

Very truly yours,

JOSEPH L.

Deputy Attorney General.

Hunter, Receiver, vs. Bennett.

Set-Off Accommodation Maker-Deposit in Bank of Endorser Who Is Real Debtor.

In an action by a Receiver of a Trust Company on a note made by B as an accommodation maker for C the endorser, C had directed that a deposit in a Trust Company held by him be applied in payment of the note, and the maker of the note asked to have this deposit set off against the note. Held, that the set-off should not be allowed, as the deposit was not in the maker's name nor assigned to him and it would be giving him a preference over other creditors of the insolvent Trust Company.

McKee, Mitchell N Alter, for plaintiff.

John P. Hunter, for defendant.

Motion ex parte defendant for new trial and judgment non obstante veredicto. No. 2161 October Term, 1913. C. P. Allegheny County.

REID, J., April 7, 1915. This case is before us on motion exparte defendant for a new trial and for judgment non obstante veredicto. As the reasons for a new trial are, if well founded, such as would warrant the entry of the judgment moved for, we shall consider both motions together.

The plaintiff as receiver of Land Trust Company brought suit on a note signed by the defendant to the order of Thomas L. Kerin and endorsed by him and one Charles Denny for $700 with interest from November 12, 1909.

The defense admits the execution of the note, but claims that Bennett was merely an accommodation maker and that this fact was known to the Land Trust Company at the time of the making of the note and its acquisition by the Trust Company, and attempts to set-off a deposit in said Trust Company standing in the name of Kerin at the time of the failure of the Company, the amount of which was $647.48. Plaintiff denies that defendant has this right of set-off (1) for the reason that Kerin at the time of the failure was and still is indebted to the plaintiff on two other notes, upon one of which judgment for $2,016.17 has been entered against him, and another for $400 upon which an action is now pending; (2) because defendant did not own the fund sought to be set-off and has no standing to require its application to the extinguishment of his debt; and (3) because the allowance of such a set-off as against an insolvent corporation would be granting a preference which is forbidden by the law.