Hunter vs. Bennett. Defendant is not trying to set-off his own deposit, but seeks to avail himself of the deposit of his endorser who, it appears, is already heavily in debt to the plaintiff, this obtaining a preference for himself and the endorser, which other depositors of the insolvent company could not obtain for themselves. The defendant does not rely on any actual assignment, as there was no assignment-but his counsel's theory is that as Kerin, the endorser, was the person for whose use the note was discounted, and defendant was merely an accommodation maker, he stands to Kerin in the relation of surety and is, therefore, entitled to set-off Kerin's deposit without having a formal assignment of the fund. Kerin did not assign or attempt to assign his deposit to defendant, but merely after the appointment of the receiver verbally directed the then receiver to apply the amount of his balance to the Bennett note-and later, on August 11, 1913, served the present receiver with a copy of Exhibit "A." This document is as follows: "David Hunter, Jr., Receiver, Land Trust Company, Dear Sir: This is to notify you to apply the money I have on deposit with the Land Trust Company to the note made to me by E. E. Bennett, due November 12, 1909, and discounted by said Trust Company. I gave verbal notice to the receiver of the bank a few days after its failure to make this application of the money. In this case Mr. Bennett is merely accommodation maker and owes none of the note whatsoever. The indebtedness is entirely mine and hence I wish the funds in the bank to my credit to be applied to this note. Very respectfully, THOS. L. KERIN," It seems to us that all the reasons urged against the allowance of claim to set-off are good. We are not unmindful of the cases, such as Trust Company vs. Biggerstaff, 59 P. L. J., 28, and Yardley vs. Clothier, 49 Fed., 337, in which endorsers were permitted to set-off their own deposits where the notes matured subsequent to the failure-but such is not the situation here. We know of no authority for permitting Bennett to use Kerin's deposit, and there are so many reasons why he should not be allowed to do so that we cannot, as we are practically asked to do, treat Kerin and Bennett as one entity for the purposes of this case. The fundamental principles governing the allowance of a set-off seem to forbid the extension of this right to cases not contemplated by the law. The very Act of 1705, giving the right of set-off, provides that "if two or more dealing together be indebted to each other, * * * and one of them commences an action, * * * it shall be lawful for such defendant to plead payment, etc." Then, also, the claim sought to be set-off must actually belong to the defendant before plaintiff begins his action: Huling vs. Hugg, 1 W. & S., 418. Pennell vs. Grubb, 13 Pa., 552. The only assignments that the Courts will recognize as the foundation of a claim for set-off must be absolute assignments, even where made prior to insolvency: Oyster vs. Short, 177 Pa., 591. That a defendant cannot set-off a debt due to any one but himself is ruled in Longafelt vs. Bartsher, 3 P. & W., 492. Hunter vs. Bennett. As to the preference against other creditors and depositors, which would be effected by allowing such a set-off, it seems to us that this position alone is sufficient to prevent it. Even were the corporation not an insolvent one, Bennett would not have a right to set-off, much less so where it is admitted to have been insolvent before the maturity of the obligation. Venango National Bank vs. Taylor, 56 Pa., 14, is in point in this connection. Counsel for defendant vigorously contends that Kerin's direction to the receiver to apply the fund was effective and that it fixed Bennett's right to the set-off. We are convinced that the Court was right in giving binding instructions upon the trial of this case for the plaintiff and in directing a verdict for the full amount of the claim of the receiver with interest. We, therefore, refuse the motion for a new trial, and also refuse the motion for judgment non obstante veredicto, and enter the following order: ORDER. And now, April 7, 1915, on hearing of motion ex parte defendant for judgment in favor of the defendant non obstante veredicto, the said motion is refused, and upon payment of the proper jury fee, the Prothonotary is directed to enter judgment upon the verdict in favor of the plaintiff and against the defendant. Thomas vs. Jacobs. Injunction- -Gasoline Tank-Equipment and Location. A preliminary injunction on a bill to prevent the erection and maintenance of a gasoline tank, in which to store and from which to sell gasoline, on the allegation that the same will be a nuisance, dangerous to life and property, on account of the liability of explosion, will be dissolved where the court finds the facts to be that the tank when erected, equipped and maintained, in the manner and at the location proposed, will not be unduly dangerous to life or property and will not constitute a nuisance. Motion to continue preliminary injunction. In Equity, No. 766. C. P. Fayette Co. L. B. Brownfield, Elias Goodstein and George Patterson, for plaintiff. VAN SWEARINGEN, P. J., June 1, 1915.-The plaintiff filed a bill for an injunction to restrain the defendant from erecting and maintaining a gasoline tank on defednant's premises in which to store and from which to sell gasoline. The plaintiff alleges that the maintenance of the gasoline tank on the location proposed will be dangerous to life and property on account of the liability of explosion, and prays the court to declare the same to be a nuisance. The defendant, by answer filed, admits that it is his purpose and intention to erect and maintain a gasoline tank at the location alleged by the plaintiff, but he avers that the tank will be equipped with the most modern safety appliances, and denies that it will constitute a nuisance, or that it will be dangerous to the public or to the plaintiff. When the bill was filed we awarded a preliminary injunction, and the matter now is before us on a motion to continue the preliminary injunction until final hearing. From the bill, answer, exhibits and competent testimony offered, we find the facts of the case to be as follows: 1. The residence of the plaintiff and the proposed location of the gasoline tank are in the mountain village of Thomasdale, in Henry Clay Thomas vs. Jacobs. Township, adjoining the Somerset County line. Through the village runs the National Pike from Wheeling to Cumberland, on which there is much automobile travel, creating a demand for a public gasoline station at that point. The village comprises about thirty buildings, including nine dwelling houses. Nearly all the buildings in the village are on the north side of the pike. The proposed location of the gasoline tank is on the opposite side of the pike, and across a creek running alongside of and parallel therewith. The only structures in close proximity to the proposed location of the gasoline tank, on that side of the pike, except the railroad tipple from which the gasoline will be unloaded from the railroad cars into the tank, are a few buildings belonging to the defendant, and they do not adjoin the proposed location of the tank. 2. The plaintiff is the owner of considerable property on the north side of the pike, including his private residence, a dwelling house and store building combined, several tenant houses, and a number of stables, warehouses and lumber yards. Thomasdale is a shipping point for lumber and railroad ties, and large quantities of lumber and ties are stored there. A line of the Baltimore & Ohio Railroad runs through the place, and two trains pass there each day, accompanied with considerable shifting of cars, and sparks at times are emitted from the engines, although the engines are equipped with spark arresters. A system of telegraph lines runs along the south side of the pike. It is about eighty feet, across the pike and the creek, from the nearest warehouse of the plaintiff to the proposed location of the gasoline tank, and it is one hundred and thirty-two feet across the pike and the creek from the nearest dwelling house to the place where the tank is to be located. The railroad station is on the north side of the pike, two hundred and ninety feet from the tank location. The other buildings on the north side of the pike are located at various distances from the proposed location of the gasoline tank. 3. Gasoline is a liquid carbon or fuel. Its largest ingredient is carbon. In the open liquid gasoline is not explosive, but it gives off or generates a certain amount of gas, that is, an admixture of gasoline and air, a substance containing more oxygen than is contained in gasoline, and this gas or vapor, when compressed or confined, is explosive. The amount of gas or vapor generated from gasoline depends to a great extent on the temperature of the surrounding atmosphere, more gas being generated under high temperatures than when the temperatures are low. To prevent danger of explosions in the storage and handling of gasoline precautions must be taken to permit the escape of the gas or vapor generated from the gasoline. The gas is lighter than air and will rise and disappear if allowed to go free. 4. The gasoline tank proposed to be erected by the defendant will be fastened upon a concrete base. The tank is of steel construction, is cylindrical in form, is twenty-eight feet in length and eight and one-half feet in diameter, and has a capacity of ten thousand gallons. It will lie lengthwise upon the base, and will be filled by an intake pipe at one end. On top of the tank at either end will be an automatic safety valve two inches in dameter, the cover of which will be raised by pressure of gas from within the tank, allowing accummulations of gas thus to escape. In addition to these safety valves, there will be a manhole in the center of the top of the tank, with a diameter of sixteenth inches, with a hinged cover which also will be raised automatically by any extraordinary pressure of gas from beneath. The tank is to remain in the open, without cover, which is the safer method of maintenance, because it allows the escape and disappearance of the gas more freely from the tank. The gasoline will be withdrawn from one end of the tank, within a room constructed of iron, and neither the drawing faucet nor any of the fixtures on top of the Thomas vs. Jacobs. tank will be within reach of any persons except those in charge of the premises. When so erected, equipped, and maintained, the storage of gasoline in said tank and the withdrawal and sale of the same therefrom, at the proposed location, will not be unduly dangerous to life or property and will not constitute a nuisance. Our conclusion of law is, therefore, that the plaintiff is not entitled to the injunction for which he prays. And now, June 1, 1915, the preliminary injunction heretofore granted i: dissolved. In re Payment of Revenue on Shipments from State Sanatoria. United States revenue State of Pennsylvania payment. Right to subject state to A railroad company receiving containers for shipment without the necessary United States revenue stamps, cannot compel the State, which in this case did the shipping, to supply such stamp". OFFICE OF THE ATTORNEY GENERAL, Your favor of the 15th, addressed to the Attorney General, is at hand. The facts are, as I understand, that at the Sanatoria exclusively controlled and operated by the State, through your Department, food supplies and other articles are received in crates, cartons, and other containers. That these containers are charged against the State, and the cost of them credited again to the State when the shipper receives them empty. They are, therefore, returned by the Sanatoria to the shipper. The Railroad Companies include in their first shipment the charge for returning the empty containers and, therefore, in returning them the State pays no express or freight charges. That the Pennsylvania Railroad Company has notified the Sanatoria that these containers cannot be received for shipment without the necessary revenue stamps being furnished by the State. The Pennsylvania Railroad Company cannot make such demand. To require the State to furnish the revenue stamps for the shipment of these containers back to the shipper is taxing the governmental agencies of the State. There is no power in the Federal Government so to do, and the Act of Congress requiring the Internal Revenue Stamps cannot be so construed. . I, therefore, advise you that you are not required to furnish revenue stamps for the shipments in question. Very truly yours, WM. M. HARGEST, Deputy Attorney General. Jackson vs. Pittsburgh Railways Company. Negligence-Automobile crossing in front of street car. Plaintiff's crippled automobile hauled by a truck was hit by street car when truck had passed over tracks and plaintiff was injured. Held, Question of negligence and contributory negligence was for the jury since the evidence was conflicting. Motion ex parte defendant for a new trial. No. 485 October Term, 1913. C. P. Allegheny County. Thomson & Thomson, for plaintiff. Burleigh & Challener, for defendant. BROWN, J., May 25, 1915.- Plaintiff brought this action to recover damages for personal injuries received in a collision between an automobile and a car of the defendant company, the evening of September 30, 1912, at a railway stop called "Cooks Stop" in the Borough of Ben Avon. Plaintiff's story was: that the automobile-unable to proceed with its own power-was hitched to a truck by which it was being transported; that the truck and attached machine were following west a car of the defendant; that the car came to a stand-still at the railway stop, known as "Cooks Stop" in the Borough of Ben Avon; and thereupon, with the car still standing, the truck with the automobile attached passed from behind the car and around it, and proceeded with due care ahead and along the highway to a point 150 to 200 feet ahead of the car, which he alleged was still standing at "Cooks Stop;" and then the truck with the attached automobile turned diagonally toward and proceeded to cross the track upon which the car was; and while attempting to cross was struck by the car running at a high and dangerous speed. If the injury arose in that way, solely from the negligent operation of the car, plaintiff was entitled to a verdict. The defendant's story, as told by its witnesses, was: that the car was not standing at "Cooks Stop" when the truck with the automobile attached started across the track, but running carefully at a reasonable speed; that the attempt of the truck to cross was not at a point 150 to 200 feet ahead of the moving car, but about four or five head of it-in an effort to pass between the car and a wagon moving in the reverse direction on the other track, causing the right wheel of the wagon to lock-in with the front wheel of the automobile, pressing the automobile against the left side of the carthus causing the injury of which plaintiff complained; that this interlocking of the wheels of the wagon and automobile and pressing against the side of the car came so suddenly and unexpectedly that the motorman, acting carefully and promptly applying the brakes, was unable to stop the car in time to avoid the collision. If the injury arose in that way the defendant was entitled to a verdict. With this conflict in the stories told, the true version of the collision was an issue of fact for the jury, and the jury found for plaintiff. The verdict established the plaintiff's injuries resulted not from any engligence or contributory negligence on his part or on the part of those operating the truck with the automobile attached, but solely from the motorman's negligent operation of the car. New trial refused. |