In re Annexation of Borough of Carrick to City of Pittsburgh.

An examination of the "School Code" satisfies us that the difficulties awaiting solution in the event of annexation, so far as the School District of Carrick Borough is concerned, will disappear when the subject is taken up for final adjustment.

While not explicitly referring to the change incident to annexation, we believe Section 109 of the Act of May 18, 1911, P. L. 309 (School Code), will cover the case of the annexed territory. It is as follows:

"If any new school district is made by the creation of any city, borough, township, or independent school district, or if the boundary lines of any school district are changed, by reason of the changing of the boundary lines of any city, * * * then, in such case, such change, so far as it relates to school districts or school affairs, shall take effect at the beginning of the first school year after such change in boundary lines permanently effected."

Section 110 provides in part:

* Where the boundary lines of any district are changed by the changing of the boundary lines of any city, * * * the school districts to which land has been annexed or from which land has been taken, shall make a just and proper adjustment and apportionment of all school property, real and personal, including funds, as well as indebtedness, if any, to and among such school districts."

It may be contended that this section indicates that there is in contemplation a fraction, at least, of a former district, yet remaining, which would be entitled to take a portion of the assets of the original district. Admitting this to be true, it yet presents the method by which the yet continuing officers of the old borough school district may agree with the First Class District into which it merges as to the valuation, disposition and control of the assets and indebtedness of the district which is about to lose its identity.

Sections 119, 120 and 121 of the same Act may also be referred to as furnishing a further basis by which the rights of the old borough and the city district can be worked out equitably, if not within the strict letter, at least within the spirit and purpose of the Code. In any event, the clear language of the Act of April 28, 1903, yet remains to control our action. Where the proceedings are regular as they are here, we have no discretion. The Act says the Court, "if the requirements of this Act have been complied with, then shall order an election to be held * * * upon the question of annexation."

The exceptions are overruled and we accordingly enter the order which we file herewith.

ORDER.

Now, to wit, September 10, 1915, after hearing the above entitled case, and it appearing that all of the requirements of law have been complied with, it is hereby ordered and directed that an election be held in the Borough of Carrick, Allegheny County, Pennsylvania, upon the question of annexation to the City of Pittsburgh; the said election to be held at the next general election, to wit, November 2nd, 1915.

It is further ordered and directed that notice of said election shall be published in the Mt. Oliver "Hill Top Record," a weekly newspaper of general circulation in the territory sought to be annexed, for three consecutive weeks preceding said election, and that fifty (50) handbills giving notice of said election be posted in conspicuous locations in the said Borough of Carrick.

It is further ordered that the Allegheny County Commissioners prepare separate ballots for such election which shall read on the outside "Annexation," and on the inside "For Annexation" or "Against Annexation," and

In re Annexation of Borough of Carrick_to City of Pittsburgh.

that said Commissioners shall provide for the placing of such ballots at the polling places at the opening of the polls on the day fixed, and for separate ballot boxes to receive ballots.

It is further ordered and directed that the election shall be held at the regular polling places and by the regular election officers. In receiving and counting and in making returns of the votes cast, the Inspector, Judges and Clerks of said election shall be governed by the laws of this Commonwealth regulating Municipal Elections, and thereafter the result of the election shall be certified to the Court.

Bongiovanni vs. P., C., C. & St. L. Railway Company.

New Trial-Allegata and Probata-Damages-Collision Between Locomotive and Street Car.

A locomotive collided with a street car and knocked it off the track at a crossing. Plaintiff, a pedestrian, was found beside the track and taken to a hospital. There was a question as to whether plaintiff was actually hit or suffered heart trouble as a consequence of the excitement. Plaintiff vainly tried to collect damages from both the railroad company and the street car company, and then sued the railroad. There was no evidence that plantiff contributed to the accident. Plaintiff's statement of claim averred "that the car struck and knocked him down." Plaintiff testified that "the train didn't hit me and the street car didn't hit me and nothing hit me * • I just got so scared that my heart is out of place now, etc." Verdict for plaintiff and motion for new trial on ground of variance between allegata and probata and instructions as to measure of damages. New trial granted.

Motions for new trial and for judgment n. o. v. No. 1078 July Term, 1914. C. P. Allegheny County.

H. Fred Mercer, for plaintiff.

Dalzell, Fisher & Hawkins, for defendant.

CARPENTER, J., June 10, 1915.-Defendant presented a request for binding instructions and. now moves for Judgment n. o. v. A motion for new trial has also been filed

It is not disputed that a collision occurred between a locomotive owned and operated by defendant and a car owned and operated by the Pittsburgh Railways Company, at the Fourth Avenue crossing in the Borough of Carnegie. The defendant was sending a train to Washington, Pa., and the car of the Pittsbugrh Railways Company was coming from Heidelburg to Pittsburgh. They met at the crossing, the locomotive striking the front end of the motor car, knocking it from its track in such a way that the front end of the car was turned in the direction in which the train was moving. Plaintiff alleges that he was on his way to his lodging place and that when the collosion occurred he was struck by the motor car when, and because, it was knocked from its track by defendant's locomotive.

There is testimony from which a jury might find that the first and efficient cause of the accident was the failure of the motorman to stop his car before attempting to cross the railroad tracks. There is testimony from which they might find that the train was being run at a dangerous rate of speed, without warning, and it is claimed that this was the negligence that brought about the accident. It is contended also that the jury had sufficient evidence to warrant a finding that the employees of both companies were negligent and that their joint negligence was the sole efficient cause of the accident.

Bongiovanni vs. P. C. C. & St. L. Railway Company.

That the collision occurred is admitted; the cause, and which company is responsible, or whether it was the negligence of both, are matters of dispute. It is clear that the plaintiff is not chargeable with any responsibility for the alleged negligence of the servants of either or both companies. We do not think that the evidence is such as to warrant the Court in saying that plaintiff was guilty of contributory negligence. A careful examination fails to discolse evidence of such want of care as to require the Court to withdraw the case from the jury.

The real, the efficient, the proximate cause of the accident; whether it was due solely to the negligence of the defendant or was the result of the joint negligence of both the traction and the railroad companies, was for the jury to determine. If the railroad company was free from negligence it is not liable for damages; if the joint negligence of the two companies was the sole, efficient cause of the accident, the plaintiff has the legal right to maintain this suit.

It is contended that the Court erred in charging the jury, that this was not a case for nominal damages, that plaintiff was entitled to either substantial damages or was not entitled to anything. The elements of damage were given in detail. The question was one of liability or nonliability. In view of what our appellate courts have said on this subject where substantial damages are proven it is difficult to discover any good reason why a jury should not be plainly instructed. If substantial loss is shown, what possible injury or wrong can result from instructing a jury as to its legal duty to assess damages? Our Appellate Courts have reversed where actual loss was shown and nominal damages only allowed. The Court must give instructions as to items that are to be considered and these items ordinarily aggregate a substantial sum. What harm can result in saying so to a jury and thus avoiding the danger of a verdict that must be set aside?

In the view we take of the case at bar this question is not of great importance but is discussed because in many cases it may become important. We can see no reason why what has been said in detailed instructions as to items and elements of damage, should not be stated in concrete and concise form, based, as both statements are, upon the finding of the jury on the controlling question—the question of negligence.

He

The verdict is so palpably at variance with the weight of the evidence as to convince us that certain undisputed facts were forgotten or disregarded by the jury. The plaintiff's claim rests upon the averment that a locomotive operated by the defendant's servants struck a car of the Pittsburgh Traction Company at the Fourth Avenue crossing in Carnegie and that the car struck and knocked him down, injuring him seriously. testified that as a result of his injuries he stayed three weeks in bed. was asked on cross-examination whether he was able to get out of bed at all and replied, "For three weeks I was not able to." He later stated that he was hurt on Saturday, the 15th, and went to see Mr. Smith in the Railway Company's office on Monday, the 17th, and did not go to bed for about three days.

He

He went to the office of the Railways Company on 6th Avenue, Pittsburgh, on the 17th of September and gave a statement of the injury. This statement was taken down and it is impossible to reach any conclusion other than that it is in his own language. The language used in describing what occurred leaves no room for doubt that his words were written just as they fell from his lips. In that statement he said he was not struck but was frightened or, to quote his words as set out in his statement, he said "The train hit the car and I see it coming and I don't want to get killed and I throw myself down away from the track to keep from getting

Bongiovanni vs. P. C. C. & St. L. Railway Company.

hit and I get so scared." He further said "The train didn't hit me and the street car didn't hit me and nothing hit me but if I wasn't wise enough to throw mysefl down I would get killed, but nothing hit me and I just got scared that my heart is out of place now, it just jump all the time because I was so scared. I didn't get hurt any place, just got scared and my heart is out of place and jumping. There was nothing hit me just where my heart is, but I thought the car had me and that got me scared." He testified that he had told Mr. Smith who took down his statement that the car hit him. His brother John was with him when he gave his statement, was present in Court during the trial and was not called to substantiate the plaintiff in any matter touching the visit to Mr. Smith's office. It is admitted that he visited the office of the defendant company on Penn Avenue and discussed his case. The testimony as to what he claims and why, was disputed. The fact that a demand for money may have been made does not affect our view of the case as he may have been in doubt as to which company was liable, if either was, and he evidently claimed that one or the other was liable.

To sustain his contention that he was struck by the motor car, he called several witneses. Carmel Catanes testified that he had seen Bongiovanni "get hit in the shoulder and the street car knocked him down." He was very specific respecting certain details. On cross-examination he was asked "Was it a light train, or a full train-empty or full of passengers?" and replied: "I saw lots of ball game men on the train." He was asked "Did lots of people get out of the train when it stopped, and gather around there after the accident," and he answered: "Lots of people got off the train when it stopped because the train hit the street car and everybody got off it." It was in evidence and not disputed that the train was empty, was being run to Washington to bring in the baseball team and people who wished to attend the game to be played that day at Pittsburgh. Comment on the testimony of this witness is unnecessary. Testimony was given by others that tended to support plaintiff's contention. Just how much weight the testimony last quoted had with the jury we do not know; that it was not worthy of belief we have no doubt. The visits of plaintiff and his brother John to the offices of the railroad and railways companies were voluntary; were not the result of any requests by the agents of either company. Why John was not called as a witness to support his brother's version of what took place on the occasions of these visits does not appear, though the former was present at the trial and was on the witness stand. Further comment is unnecessary.

New trial granted.

In re Building and Loan Association.

Stock-Full-Paid and Installment Guaranteeing Interest or Dividends.

It is not permissible for a Building and Loan Association to have more fullpaid stock than installment stock. It would be illegal for an association to issue full-paid stock, the interest or dividend on which was guaranteed, irrespective of whether the same were earned or not.

I have you letter of September 3rd, 1915, asking:

First. Whether a building and loan association in this State may issue more full-paid stock than installment stock and if not to what extent fullpaid stock may be issued.

Second. As to whether or not the promise of a fixed rate of interest or dividend on full-paid stock is lawful and if not in what manner the rate of profits in this class of stock should be determined.

Answering your first inquiry, I have to advise that in an opinion of the Hon. John P. Elkin, Attorney General, given on this same subject on September 21st, 1899, it was held:

"The primary and principle business of building and loan associations incorporated under the Act of 1874 must be the issuing of installment stock. Full-paid and prepaid stock may be issued to a limited extent as incidental to the principle business of the association issuing the same; that is to say, where the best interests of those holding installment stock will be saved by issuing a sufficient amount of full-paid or prepaid stock to enable the association to meet the demands of borrowing members, it may be done without violating any charter rights.

The issuance of full-paid and prepaid stock should not at any time be permitted to become the principle business of the association, and at no time should there be more prepaid and full-paid stock issued than there is installment stock outstanding."

The soundness of this opinion was evidenced by its practical adoption by the Supreme Count of this State in 1906, when, in the case of Folk vs. State Capital Savings Association, 214 Pa., 529, it was held that the issuance of full-paid stock was lawful

"provided that the issue is incidental to the main business of the association, and is intended to provide a fund from which loans may be made to the holders of installment stock. To this extent and for this purpose, its issue is within the implied powers of such association."

It is doubtful if the Supreme Court could have expressed in much stronger language the fact that the issuance of full-paid and prepaid stock must not be either the predominating business of a building and loan association nor even an equal business with that of its issuance of installment stock. No technical definition of the word "incidental" is necessary. However, Words and Phrases, Vol. 4, page 3493, gives the following definition, quoting from Thomas vs. Harmon (N. Y.), 46 Hun., 75-77:

"Belonging to or pertaining to; following; depending upon another thing as more worthy; something necessarily pertaining to or depending en another, which is termed the principal."