Kleine vs. Pittsburgh Railways Company.

In the charge, affirming defendant's second request, the jury were instructed that if they believed "from the evidence that there was no jerk or jolt or jump of the car, other than incidental to and a consequence of the ordinary and usual operation of the car, the plaintiff is not entitled to recover."

The verdict of the jury established that the plaintiff was thrown from the car by reason of the unusual and extraordinary jerk or jolt of the car, and if the evidence warranted that finding the motion must be refused.

It may be conceded that it was incumbent upon the plaintiff to produce evidence more definite than that the car "gave an awful jerk" as testified by her, but in addition to plaintiff's testimony Mrs. Margaret Speer testified that the jolt was such as to throw her towards the front of the car and "almost threw a little child from my arms." She had frequently traveled on the cars and described the stop as "an unusually hard jerk." On cross-examination she said, "It was an unusually severe jerk. You know sometimes when they go to stop they will give a little quick jerk, but that was a hard jerk, it was hard enough to throw anybody else out of the street car."

Certain of the expressions both of the plaintiff and of Mrs. Speer may be indefinite, yet their testimony as a whole, taken in connection with their description of the effect of the stop on passengers, was sufficient to warrant the jury if they believed the witnesses in finding that the car came to a stop with an unusual jerk or jolt.

The reasons assigned for a new trial are that the Court refused to affirm plaintiff's fifth and sixth request; that the verdict was contrary to the weight of the evidence, and was excessive. We will consider the reasons in order.

In the fifth point the Court was asked to charge that the plaintiff could recover only for the loss of earnings for three days in the week, and in the sixth point, that she can only recover for loss of earnings and earning power for three days in a week. Both requests were refused and the jury's attention directed to the evidence in relation to the tstimony, showing the time she was actually employed and the wages earned.

Prior to the accident, the plaintiff performed household work for such persons as desired her services. When so employed she was paid $1.50 per day and her carfare. During the year, immediately preceding the accident, she had not been continuously employed; at times unable to accept employment by reason of the illness of her mother whom she assisted in household work. The plaintiff testified:

"Q. How many days a week did you go out?

A. I usually went out every day if I could get it, and some weeks I only went from three to four days, but usually I went three days, I had three steady days."

*

"Q. Did you work other places besides that in a week?

A. If I could get them. Most all the time my mother was too delicate to do her own work and I had to stay home and help her."

It also appeared that she had worked Saturday and Sunday immedi- . ately preceding the accident, which were additional to the days of her regular employment.

The ability to labor, the daily wage earned were clearly shown. The number of days of each week during which she was employed was not definitely fixed, and was determined largely by the number of persons employing her, but the jury might fairly and reasonably infer that it was more than three days for which she had fixed engagements. She testified that

Kleine vs. Pittsburgh Railways Company.

it was three or four days and at other times when not prevented by her mother's illness

We have reviewed and carefully considered the evidence and though we would have been satisfied had the jury found for the defendant, yet it cannot be said that the verdict is so clearly contrary to the weight of the evidence as to warrant the granting of a new trial.

"A Court is not authorized to set aside a verdict simply because if they had been on the jury they would have found a different verdict. It is not sufficient that the verdict may possibly be wrong, but after giving a proper weight to all the evidence it cannot be right."

It was said by Stowe, J., in Murray vs. Goehring:

"The question before the Court upon this motion is not what a jury of reasonable men ought to have done, but what a jury of reasonable men might have done under similar circumstances."

The questions were of fact and depended on the credit to be given the testimony of the witnesses.

Defendant further contends that the verdict is excessive.

Dr. McCleary, the attending physician, testified that he visited the plaintiff at her home on the day following the accident and found her suffering from a nervous tremor, her left arm bruised and abraded, her hip, back and lower end of the spine badly bruised, and her spine and sides swollen and tender on pressure. She was confined to her bed for seven weeks and to the house five or six months. An operation was performed and the coccyx-the lower end of the spine-was removed, relieving the soreness and enabling her to sit on a chair. The physician testified that she is suffering from a misplaced womb and from extreme nervousnessneurasthenia. From the time of the accident to the present time she has suffered and is yet suffering from nervous tremors produced by the shock.

We have briefly reviewed the testimony of Dr. McCleary. It is apparent that if the physician and the plaintiff are believed, the injuries sustained by the plaintiff were of a serious nature. The jury found that the injuries were permanent; that she has been constantly suffering pain, and will continue to.suffer pain in the future.

In Thurston vs. Martin, 5 Mason, 497, Mr. Justice Story said:

"It is one thing for a Court to adminster its own measure of damages, in a case properly before it, and quite another thing to set aside the verdict of a jury because it exceeded that amount."

In this case the verdict is large, but it cannot be said that it is palpably against the weight of the evidence or is the result of prejudice.

ORDER.

Now, June 2, 1915, the motion ex parte defendant for judgment non obstante veredicto is refused and the rule for a new trial is discharged.

(Note: The above case has been appealed to the Supreme Court of Pennsylvania.)

Goshorn vs. McKinnie et al.

Principal and Surety-Payments by Receiver-Banks.

Plaintiff was delinquent tax collector and defendants gave a judgment bond for $75,000.00 to protect plaintiff for public moneys kept on deposit in a bank. When the bank closed it doors plaintiff had on deposit $210,137.80. The receiver paid on account sufficient to reduce this amount to $49,072.95. The bond was entered and judgment confessed for this sum. Defendants claimed they were not liable for the reason that as soon as the Receiver had paid the first $75,000 they were discharged and could not be held for any further sum.

Held, That the bond was intended as a security to the plaintiff in addition to the liability of the bank and that plaintiff was entitled to judgment.

Scire facias sur D. S. B. No. 20 January Term, 1914. C. P. Allegheny County.

Lyon & Hunter, for plaintiff.

Thomas & Arthur, for defendant.

SHAFER, P. J., July 1, 1915.-The action is a scire facias sur D. S. B. No. 19 January Term, 1909, and by agreement of counsel tried by the Court without a jury. From the evidence of the plaintiff, no evidence having been given by the defendants, we find the facts to be as follows:

FINDINGS OF FACT.

First. The plaintiff, at the time the bond upon which this suit is founded was given, was Collector of Delinquent Taxes of the City of Pittsburgh, and had a deposit in the Cosmopolitan National Bank, and had a bond in some amount to secure the same.

Second. It having been arranged between himself and the Bank that the deposit was to be increased, the directors of the Bank, who are the defendants herein, gave the plaintiff the bond in suit, which recites that the plaintiff proposes to deposit $75,000.00 in the Bank, which amount may be increased or decreased from time to time, and obligates the defendants to the plaintiff in the sum of $75,000.00, with a warrant of attorney to confess judgment upon the happening of any default in the payment of the principal. The bond also contains the following provision: "The obligor further agrees that execution may issue on such judgment so confessed for the full amount of money that may be due and owing from it to the said L. R. Goshorn."

Third. Immediately before the bond was given the plaintiff had on deposit in the Cosmopolitan National Bank the sum of $113,195.35, and immediately after giving the bond he deposited an additional sum of $96,747.27.

Fourth. The Cosmopolitan National Bank became insolvent and closed its doors on September 8, 1908, at which time plaintiff had on deposit the sum of $210,137.80.

Fifth. The Receiver of the Bank, after September 8, 1908, at various times, paid to the plaintiff on account of his said deposit and interest thereon, certain sums which reduced the amount of the deposit with interest, at or about the date of the trial, to $61,255.23, and the plaintiff has received from the sale of property of defendants, or payments made by them individually, the sum of $8,935.16, leaving the balance now unpaid $49,072.95, with attorney's commission as provided by the bond.

Sixth. It is admitted by both parties that all the defendants are insolvent.

CONCLUSIONS OF LAW.

As we understand the contention of the defendant, it is that the payments made by the Receiver of the Bank to the plaintiff are to be considered

Goshorn vs. McKinnie et al.

as payments on this $75,000.00, rather than the remainder of his deposits, and that all the defendants were liable was to see that the first $75,000.00 of his deposits were repaid to him. We cannot agree with this interpretation of the bond, which, while it is inartistically drawn is evidently intended as a security to the plaintiff in addition to the liability of the Bank.

The plantiff is entitled to judgment against the defendants for the sum of $49,072.95, with an attorney's commission of 5 per cent.

In re Trust Companies Acting as Real Estate Brokers.

Trust Companies-Dealing in Real Estate-License Tax-Brokers.

Trust companies which handle or deal in real estate for a commission or other compensation are subject to the license tax imposed on real estate brokers under the Act of May 7, 1907, P. L. 175.

OFFICE OF THE ATTORNEY GENERAL,

Hon. A. W. Powell,

Sir:

Auditor General,
Harrisburg, Pa.

Harrisburg, Pa., July 9, 1915.

We have your inquiry of July 7, 1915, as to the liability of a trust company dealing in real estate under the Act of May 9, 1889, P. L. 159, to assessment for a license tax as real estate broker under the Act of May 7, 1907, P. L. 175.

The Act of May 9, 1889, is supplemental to the General Corporation Act of this State, of April 29, 1874, P. L. 73. The purpose of the supplemental act is merely to grant enlarged powers to those coming within its purview. Trust companies and other corporations of a similar character created subsequent to the Act of 1874 look to this act and its supplementing and amending acts, such as they may subsequently accept, for their corporate powers and restrictions, but the right of the State to tax such corporations and their business is not limited by such acts.

While it is true that the creation of a corporation under a particular act may be construed as a contract between the State and such corporation, yet the construction of such a contract is strictly against the corporation and liberal in favor of the State.

Packer vs. Sunbury & Erie Railroad Company, 19 Pa., 218.

Moreover, when the subject of the right of the State to tax a corporation appears, we find that Article IX, Section 3, of the Constitution of 1874 provides:

"The power to tax corporations and corporate properties shall not be surrendered or suspended by any contract or grant to which the State shall be a party."

In view of this express prohibition no corporation created since the adoption of the last Constitution could claim immunity from any form of lawful taxation sought to be imposed by the State, on the ground that by its charter such corporation was exempt from that particular tax.

A corporation or individual cannot resist a tax on the ground that it is being doubly taxed. As stated in Commonwealth vs. Fall Brook Coal Co., 156 Pa., 488:

"The legislature has the power to impose double taxation provided it is done in such manner as to secure the uniformity which the Constitution requires; but an attempt to impose double taxation will not be presumed."

In re Trust Companies Acting as Real Estate Brokers.

In this State, however, it has been repeatedly held that a tax upon property and a license tax upon the business rendered possible by the employment of that property, is not double taxation. Prior to the Act of April 14, 1905, P. L. 161, a trust company acting as a real estate broker was held not to be liable for the license tax imposed on real estate brokers. This was decided definitely in the case of Commonwealth vs. Real Estate Trust Company, 211 Pa., 51. The case just cited, however, turned on the construction of the existing acts and as to whether these acts in providing for the tax on "any individual or co-partnership" included corporations. The Court held that the plain construction of the then existing acts precluded such interpretation and the case was decided not on the lack of power of the State to tax trust companies under such circumstances, but the fact that the State had not elected to do so. This case was decided on March 6, 1905, and at that session of the Legislature there was introduced and passed an amendment to the Act of June 7, 1901, in which the words "or corporations" were added to the amended act. The Act of April 14, 1905, appeared before the court in Commonwealth vs. Samuel Black Co., 223 Pa., 74, in which the constitutionality of the act was sustained and the liability of a corporation paying. the usual corporate taxes to the licensed tax imposed under this act was fixed. In this case it was contended in behalf of the corporation which by its charter was empowered to act as a real estate broker, that the application of the Act of 1905 extended only to such corporations which prior to its passage were required to take out licenses. Answering this contention the Supreme Court, on page 76, says:

“Unquestionably when the Legislature provided that 'all merchandise brokers and real estate brokers, whether persons, firms or corporations,' it intended by express terms to include corporations in the class that was required to pay a license fee to do business, and this is particularly true when we consider that the Act of 1905 was passed immediately following the decision of the court in Commonwealth vs. Trust Company, 211 Pa., 51.” As was conceded in the case of Commonwealth vs. Samuel Black Company cited, the State has the right to compel the payment by a corporation of a license tax.

In Commonwealth vs. Bailey et al., 20 Pa. Super. Ct., 210, it was expressly held that

"The fact that a corporation had paid the bonus required at the time of its incorporation and has annually paid the whole amount of the corporation tax assessed upon the whole value of its capital stock and assets, does not relieve the corporation from the payment of the mercantile tax, if it engages in the business of buying and selling goods."

If, then, the Act of 1905 rendered any corporation liable to the payment of the license tax provided therein, when such corporation acted as a real estate broker, there can be no doubt as to the similar effect of the Act of May 7, 1907. A trust company need not act as a real estate broker. It may, like an individual, acquire real estate in the regular course of its business and thereafter sell it, or during the term that it holds it collect rents from it. When, however, a corporation or an individual acts as a real estate broker, the Act of 1907 applies. This Act, in Clause F of Section 2, says:

"Real estate brokers and agents are those who buy, sell or rent real estate, or collect rent therefrom, or negotiate loans upon real estate security, for a commission or other compensation."

Attention is called to the fact that the test depends on whether the person or corporation handles or deals in real estate for a commission or other compensation. The application of the Act of 1907 is no broader or narrower than the Act of 1905. It expressly provides that real estate