Desantis vs. Campbell.

To all of which plaintiff's counsel objected (page 69) as follows: "By Mr. Eaton: Objected to for the following reasons: First, it is admitted a writing of the very Doctor which they say they prepared and which sets forth its own terms. Second, that the instrument is offered without consideration, therefore invalid as a release in this case. Third, that part of the alleged consideration was for past matters and therefore could not be the basis of a present consideration, which it would be necessary to have passing directly to the plaintiff in this case in order to bar him from his claim in this proceeding, and generally as incompetent, irrelevant and immaterial, and an attempt to vary by parol evidence a written instrument."

Which objection the trial Court sustained.

The record (pages 66 and 67) in part is as follows (Dr. Campbell on stand):

"Q. What bills did you have to pay or did pay?

By Mr. Eaton: Objected to, as there being no claim on the part of the plaintiff for any bills, therefore it is irrelevant.

By the Court: We will sustain the objection in the present state of the case; if afterwards you show such testimony is relevant under the facts as they then exist we will admit it, but as the record stands now it is incompetent and for that reason the objection is sustained."

Did the trial Court err in either or both rulings?

The paper offered as a release did not bear on its face a seal, or any evidence of consideration. A release to be effective must be either under seal or for an adequate consideration.

"Since the release of a contract or other obligation is itself a contract, the general rule of law applies that it must be based upon a legal and sufficient consideration." American & English Encyclopaedia of Law, 2nd Ed.,

Vol. 24, page 267.

"A release under seal is sometimes called a technical release; although in equity it has no greater effect than a parol release, yet it differs from the latter in one quality materially, it is self-sustaining, the seal implying a consideration. Not so is it with a release not under seal. * *

The release in question in this case, is without a seal, and without any consideration expressed. As a release it was void. It was nudum pactum, and should have been so held by the Court." Kidder vs. Kidder, 33 Pa., 269. As in ordinary contracts a release must either be under seal or supported by a sufficient consideration, otherwise it is void. It is equally necessary that there be an offer and acceptance. It does not appear in the record that plaintiff accepted what "was offered by the Doctor in considcration of the release." Defendant did not offer to prove that the plaintiff, at the time of signing the paper, accepted the offer and for it gave his release. Assent is as necessary to a contract as an offer.

We have no doubt that consideration may be shown by a separate instrument or even by oral testimony. If there was a valid consideration for plaintiff's signature to the alleged release, it can be shown without varying or changing that paper. The defendant offered to prove as a consideration for the release, payment by the defendant "of all the bills, doctor, hospital and ambulance," and treatment of plaintiff until cured by the defendant, a medical doctor. Would such proof furnish a valid consideration for a release?

The plaintiff suffered injuries as a result of defendant's negligence. Defendant thus became liable to plaintiff for compensation for the damage done. One of the elements of damage was the expense necessary for medical care, doctor, hospital, and ambulance service. The defendant arranged for these things for plaintiff, while plaintiff was unconscious or unable to do so for himself, and later paid for them. He now says the care and pay

Desantis vs. Campbell.

ment constitute a consideration for a release which he had plaintiff sign two days after the accident and while plaintiff was in the hospital.

We are quite certain defendant has paid only a part of his bill. He has done only a part of what he is legally bound to do. Having paid the expenses incident to medical treatment, he is now called upon by the jury to pay plaintiff's other damages, such as lost wages and compensation for his pain and suffering.

The plaintiff did not claim anything for medical expenses, and in that way the defendant was given credit on his indebtedness for his payment and therefore has not lost anything.

"Payment of doctor's fees by the company inflicting the injuries is no consideration for the employee's release, the company being liable for expenses which the injuries occasioned." American and English Encyclo

paedia of Law, 2nd Ed., Vol. 24, page 289.

In a very recent case, Kennedy vs. Spokane P. & S. R. Co., 132 Pac., 50, in the Supreme Court of the State of Washington, in which a release recited a consideration of medical and surgical attention, the Court said:

"The release recited that the consideration therefor was medical and surgical attention furnished by the Spokane, Portland & Seattle Railway Company.

If the rendition of these services by the physician, and the acceptance of them by appellant did not create the relation of debtor and creditor between them, then the services would not be a consideration for the release. In other words, if they were rendered under such circumstances that a recovery could not have been had for them in an action against the appellant, then they would be insufficient as a consideration.

In Am. & Eng. Enc. Law, 2d Ed., Vol. 6, p. 693, it is said: 'A person cannot make another his debtor by the rendering of voluntary services, and, as such services impose no liability upon the person for whose benefi they are rendered they cannot be a consideration for his subsequent promise tc pay for them. But, on the other hand, from the statement of the rule it follows that when the thing given or done imposes a liability upon the promisor, it is a sufficient consideration for his subsequent promise to discharge it.'

It was not contended in the trial court, neither is it urged here, that the evidence fails to make out a prima facie case of negligence on the part of the respondent which produced the original injury.

When negligence is once established, the person or corporation being guilty thereof becomes liable for the expenses incurred for medical attention and physician's services. And, on the hypothesis that there was negligence which produced the original injury, the services of a physician, being an element, of legal liability, would not be a consideration for the release of damages.

In Am. & Eng. Enc. Law, 2d Ed., Vol. 24, p. 289, the author states the rule thus: 'Payment of doctor's fees by the company inflicting the injuries is no consideration for the employee's release; the company being liable for expenses which the injuries occasioned.'

In Richmond & D. R. Co. vs. Walker, 92 Ga., 485, 17 S. E., 604, in the syllabus written by the court, it is said: 'Where a railroad company negligently inflicts a personal injury on one of its employees, and thereupon has him treated for the injury by the company's surgeon, a payment made by the company to the surgeon, even at the employee's request, is no consideration for a release by the employee to the company for all damages occasioned by the injury; the company being liable for expense of treatment which the injury occasioned."

In conclusion, the paper offered as a release was properly excluded. As a release it is void, because it does not bear a seal and is without con

Desantis vs. Campbell.

sideration. The trial Court also properly excluded testimony concerning payment of the medical expenses, because plaintiff did not claim anything for such expenses and because such payment did not constitute a valid consideration for the release.

The motion for judgment non obstante veredicto is denied. The assignments of error are overruled and a new trial is refused.

In re State Control of County Roads.

State Highways-County Roads-Streets, Cities and Boroughs-Act of 1911, P. L. 468.

Under the Act of May 31, 1911, P. L. 468, the Commissioner of the State Highway Department need not take over County roads or streets and roads within incorporated municipalities at any fixed time, but at his discretion as circumstances and conditions will permit."

I have your favor of the 7th inst. asking for an opinion as to whether

Hon. R. J. Cunningham,

State Highway Commissioner,
Harrisburg, Pa.

July 12, 1915.

Sir:

or not it is obligatory on the part of the State Highway Department to take over at any fixed time those portions of State Highway routes that have previously been built by County Commissioners, and known as "County Roads;" also whether or not it is obligatory on the State Highway Department to take over at any specified time those portions of highway routes running through boroughs.

Section 5 of the Act of May 31, 1911, P. L. 468, which provides for the taking over by the State Highway Department from the several counties and townships of the highways embraced in the State Highway routes described in said Act, makes a clear distinction between county roads and township roads. Under the Act all township roads and abandoned and condemned turnpikes were specifically directed to be taken over by the State Highway Department before the first day of June, one thousand nine hundred and twelve. This provision did not apply, however, to county roads, which are governed by the preceding clause "said highways are to be taken over in whole or in part, from time to time, as circumstances and conditions will permit."

You are, therefore, advised that as to county roads which have been built and maintained, or at the passage of the Act of 1911 properly ought to have been maintained, by the respective counties, such highways are to be taken over by you, in whole or in part, from time to time, as circumstances and conditions will permit, and there is no fixed time that it is obligatory on the part of your Department to take them over.

Before taking over any such highway you must, of course, give notice in writing, as required by the Act, to the proper officers of the county of your intention so to do, and of the date when the Department will assume the maintenance and care of such roads. After this has been done it is the duty of your Department to maintain the roads so taken over.

In re State Control of County Roads.

The Act does provide that, so far as conditions will allow, the work of maintenance, repair and construction of State Highways is to be commenced and carried on equally and uniformly in the several counties.

With reference to the State Highway routes running through boroughs you are governed by Section 10 of the Act of May 31, 1911.

That section specifically provides that the Act shall not be construed as including or in any manner interfering with roads, streets and highways in the cities, boroughs or incorporated towns of the Commonwealth. If such roads, street or highway, within the limits of a borough or incorporated town, forms a part or section of a State Highway route, and has not been improved or reconstructed in a manner equal to the standards of the State Highway Department, you are authorized, by and with the consent of the Borough Councils, to improve or reconstruct such unimproved section or sections at the expense of the Commonwealth.

This consent may either be evidenced by an express ordinance or resolution of the Councils agreeing to such action, or it may be inferred under the Act from the failure of Councils to file objection, in writing, with your Department within sixty days after you have notified, in writing, the proper authorities of said Borough of your intention to take over such road, street or highway, or any part thereof under the provisions of said Act.

Unless and until you give the proper borough authorities notice in writing of your intention to take over for reconstruction and maintenance any such road, street or highway, or part thereof, within said borough under the provisions of said Act, there is no obligation on you to reconstruct or maintain the same. Such action is to be taken by you, at your discretion, when the failure to take over such road, street or highway would leave an unimproved gap in a continuous improved state highway.

Very truly yours,

WILLIAM H. KELLER, First Deputy Attorney General.

In re Crawford County Liquor Licenses.

Liquor license-Granting of-Discretion of the court.

1. The Legislature, by the passage of the laws regulating and restricting the sale of liquor, has recognized the right of individuals to be licensed and has vested in the court a discretion in regard to the granting of licenses which is to be exercised primarily for the public good, taking into consideration the best interest of the community and the county at large, and the courts after hearing the evidence for or against the granting of a license must properly exercise its discretion and cannot refuse to exercise it by refusing all licenses, "unless for cause shown."

2. The Act of Assembly providing for the granting of licenses and for the regulation of the sale of intoxicating liquors, raises the presumption of necessity for the sale of liquors somewhere; hence, the granting of license somewhere. The clear inference is that no licnse will be granted except where there is a legal demand and a necessity within the contemplation of the law, and then only when the public welfare is not jeopardized thereby.

3. As the evidence requiring the granting of a particular license may consist of the weight of applicant's petition, so the evidence requiring the refusal of a particular license may consist of the remonstrance and its preponderating weight over the petition and the general presumption of necessity. In the latter instance, the application is properly refused "for cause shown."

In re Liquor License Applications. No.

Crawford County.

February Sessions, 1915. Q. S.

O. Clare Kent, Otto Stolz, Otto Kohler, John A. Northam, C. Victor Johnson, B. B. Pickett, Fred C. Kebort, George Frank Brown, Jules A. C. Dubar, James R. Gahan, W. J. Sirdevan and George A. Chase, for applicants.

George F. Davenport and Frank J. Thomas, for remonstrants.

PRATHER, P. J., February 15, 1915.-There has been no recent legislation on the subject of hearing and considering applications for license to sell liquors, either at wholesale or retail. So far as procedure, consideration, discretion, power and duty of the court are concerned, the law has not changed by so much as a syllable.

The Brooks High License Act of 1887 and the Act of 1891 direct the procedure and control our consideration in applications for retail and wholesale licenses respectively. The purpose of each act is announced in its title: "An act to regulate and restrain the sale of vinous, malt or brewed liquors."

These acts clearly express the legislative intent that licenses shall be granted somewhere, and as clearly negative the illogical conclusion that the granting or refusing of licenses is simply a reflection of the judge's personal attitude toward the liquor question.

The forum is opened wide, alike, to all persons who desire to apply for or to oppose the granting of licenses to present evidence, or petitions or remonstrances, or to be heard by counsel.

The Act of Assembly with reference to applications says that after hearing such evidence, petitions or remonstrances and arguments of counsel, the "Court of Quarter Sessions * * * shall refuse the same whenever in the opinion of the said court, having due regard to the number and character of the petitioners for and against such application, such license is not necessary for the accommodation of the public and entertainment of strangers and travelers."

The "opinion" referred to in the statute is not a personal, but a judicial opinion.

In Raudenbusch's Petition, 120 Pa., 328 (342), the Supreme Court said: "A judge who refuses all applications for license, unless for cause shown, errs as widely as the judge who grants all applications. In either case it is not the exercise of judicial discretion, but of arbitrary power. The law of the land has decided that licenses shall be granted to some extent, and has imposed the duty upon the court of ascertaining the instances in which the license shall be granted. In order to perform this duty properly, the act of