Jones vs. Commonwealth Casaulty Company.

pendix, from a general peritonitis and other affections and complications; that the peritonitis and other causes of death did not result from the accidental injury complained of; and the descending colon had not been bruised and injured, and that there were no marks of any abdominal injury on the exterior of his body and no evidence that there had been any on the 14th and 16th days of December preceding."

The defendant alleges other matters of defense, that the proofs of loss were not sufficient, that by the terms of the by-laws of the Fraternities Accident Order plaintiff is not entitled to recover the full amount of his policy, because of having entered into a more hazardous employment than the one at which he was engaged at the time of making his application, but I take it that the quotation above is a sufficient affidavit of defense to prevent judgment being entered in this case. It is admitted on both sides that the husband of the plaintiff died from peritonitis. Peritonitis is not an injury, it is a disease. It may come possibly as a result of an injury, or it may come from many other causes. It is denied that there was an injury to the colon, or any injury to the bowel, and it is alleged that the peritonitis was not the result of the external injury. I take it that is sufficient affidavit of defense to prevent judgment.

ORDER

And now, June 9, 1915, rule for judgment for want of a sufficient affidavit of defense is discharged.

Ingold et vir. vs. Booth & Flinn, Limited.

New Trial-After Discovered Evidence-Depositions.

A motion for a new trial in a negligence case was made by the plaintiff. Defendant based his motion on the ground that after the trial new evidence was discovered to the effect that plaintiff's condition was not due to the accident complained of, but as a result of a long standing ailment. In support of which defendant offered the affidavits of nine witnesses and three physicians. Plaintiff answered by filing an affidavit of 19 witnesses, flatly contradicting those on behalf of the defendant, at the same time urging the additional evidence of 10 witnesses examined at the trial.

Held: That the Court would not be justified in granting a new trial unless it would reasonably appear that the evidence contained in defendant's depositions, if given on another trial, would result in a different verdict. New trial refused.

Sur motions for a new trial and judgment non obstante veredicto. No. 700 April Term, 1914. C. P. Allegheny County.

Thos. M. Marshall, Jr., for plaintiff.
J. S. Weller, for defendant.

HAYMAKER, J., July 16th, 1915. This action was brought to recover damages for personal injuries to the wife, alleged to have been sustained on May 12, 1913, as a result of a stone blasted from defendant's brick works and striking her on the left side while she was in her back yard. She was 32 years of age at the time of trial. A verdict was recovered by each plaintiff. The original motions were made on May 3, 1915, and in that for a new trial some five reasons were assigned, viz: That (1) the verdict was against the law; (2) the verdict is against the weight of the evidence; (3) the verdict is against the Charge of the Court; (4) the verdict is excessive; and (5) the Court erred in holding that the plaintiff's or either of them, were entitled to compensation for the loss of the services of the wife from the time of the injury to the date of the trial, and in admitting evidence of other blasting operations than the one that was the alleged cause of the injury. On June 30, 1915, the defendant, by leave of Court, filed additional reasons for a new trial, in substance as follows: That since the trial it has been discovered that Mrs. Ingold, prior to the alleged injury, was extremely nervous, had fainting spells, headaches and pains; that for years before the accident she did not weigh more than 100 to 110 pounds; that she has been able to do her own work since the accident; that her condition at the time of trial was not due to the accident, but had its cause many years before, and that these facts were unknown to defendant at the commencement of the trial, notwithstanding due diligence.

For and against the matters alleged in the additional reasons, the depositions of 28 witnesses have been taken, 9 witnesses having been called by the defendant and 19 by the plaintiffs. On the argument of the motions defendant's counsel addressed himself entirely to the depositions of witnesses called in support of his additional reasons, and to the excessiveness of the verdict. The defendant's position at the time of the trial was, and now is, that prior to the alleged injury Mrs. Ingold was in a state of ill health of such a character as would and did, in the course of its progress, produce the physical condition from which she suffered subsequently to the date of her injury, and for which she claimed damages in this case.

In the course of the trial the plaintiffs made it appear by their own testimony, and that of many witnesses called by them, that prior to the date of the injury Mrs. Ingold was a strong, robust, cheerful woman, always in the enjoyment of exceptionally good health, was particularly free from headaches, did practically all the work of the household, and weighed about 135 pounds. The same witnesses made it equally appear that since the acci

cover.

Ingold et vir. vs. Booth & Flinn, Limited.

dent her disposition and health have entirely changed in that she suffers from extreme nervousness, constant headaches, mental depression, melancholy, general physical weakness, with an inability to perform her usual household duties. In addition to those witnesses the plaintiffs called six physicians, most of whom, if not all, claimed to have had wide and varied experience in the treatment of nervous diseases, one of them having been called to attend her at the time of her injury, and has been her physician down to the present time, making over one hundred professional calls on her on account of her condition, and all agree that her condition is due to neurasthenia caused by the accident, from which she will not probably reThe defense called Dr. Boyd, who testified that he attended Mrs. Ingold during childbirth of two of her children, in October, 1905, and about December, 1907, and occasionally between those dates, without being able to give the number of visits, during which he treated her for nervousness. He further testified that she never was strong physically, was a rather delicate, slight woman, not weighing over 110 pounds, and complained of headaches. Dr. Boyd's testimony was followed by that of Dr. Winters, to the effect that she was his patient during the latter part of 1908, in 1909, and a part of 1910; that she complained of headache, caused by certain organs dropping down in the pelvis; that with this condition continuing the tendency would be for her to grow worse; that he advised an operation; that he judged her weight then to have been about 105 to 115 pounds, and that her appearance on the trial was much the same as when he attended her, except that she was now paler, more stooped and of less weight. The defense next called Dr. Schildecker who examined her, at the instance of the defendant, on October 24, 1913, when, he says, her size was about the same as now, and from a hypothetical question gave it as his opinion that her present condition was but a continuation of a condition that existed prior to the accident. As we have said, the defendant in support of his additional reasons for a new trial took the depositions of nine witnesses, who in effect said that Mrs. Ingold prior to the accident was not the strong healthy woman that she and her witnesses, at the trial, said she was, but was frail in health, frequently suffered from headaches, and weighed but little over 100 pounds. Then the plaintiff took the depositions of nineteen witnesses who not only contradicted the evidence contained in those nine depositions, but support the evidence of some ten witnesses for the plaintiff given on the trial. Thus we have the depositions cf nine witnesses called by the defendant, and the evidence of the three doctors called by the defense on the trial, as to Mrs. Ingold's condition before and since the accident, as against the depositions of nineteen witnesses called by the plaintiff, and the evidence of ten witnesses called by the plaintiff on the trial, as to the same question. We would not be justified in granting a new trial unless it would reasonably appear that the evidence contained in the defendant's depositions, if given on another trial, would result in a different verdict. It is quite doubtful that the verdict would have been otherwise had all the evidence contained in defendant's depositions been offered on the trial, as against the evidence of some ten witnesses to the contrary adduced by the plaintiff at the trial, to say nothing of the probable outcome of another trial with the ability of the plaintiffs to supplement their evidence by that of some nineteen additional witnesses. We are not satisfied from all the evidence in the case that the verdicts were excessive. We see no good reason for granting a new trial, and we could not enter judgment for the defendant. Therefore, both motions are refused.

Hulem vs. Tozer et al.

Municipal Lien-Filing of-Sheriff's Sale-Owner-Scire Facias to Revive.

In

A municipal lien was filed in 1903 and subsequently revived by sci. fa. 1915 the property was sold by the sheriff on a lev. fa. In his special return, the sheriff distributed the fund to this lien. This was excepted to on the ground that at the time the lien was filed, the defendant was not the registered owner and in fact was not the owner of the property, although his name had been brought upon the record in the subsequent proceedings to revive.

Held: That the lien was invalid and this defect was not cured, in that no notice of the proceedings to revive had been given the defendant.

Lev. Fa. No. 350 July Term, 1915. C. P. Allegheny County.

Brown & Stewart, for exceptant.

EVANS, J., September 13, 1915.-This case comes before the Court on exceptions to the Sheriff's special return. The real estate of the defendants was sold on a Ley. Fa. at the above number and term, and the Sheriff in his special return, inter alia, distributed to the claim of the Borough of Wilkinsburg against William Wingenroth at No. 198 February Term, 1912, and the costs at No. 198 February Term, 1912, and to costs at No. 759 May Term, 1906, and No. 294 November Term, 1903, and that the claims at the above number and term were not liens upon the property at the time of the sale. The original claim was filed at No. 294 November Term, 1903, and was for a claim against the property for municipal improvements.

It is admitted that at that time Wingenroth was not the registered owner and was not the owner of the property in fact, but that the regisered owner and the actual owner was Elijah Hulem. This being the admitted fact, the lien filed by the municipality was not a valid lien on the property in the hands of the registered owner.

It is urged by counsel for the municipality that the several judgments recovered on the Fi. Fa. issued upon the said lien cures that defect and makes it a valid lien, but no notice was given in any of these proceedings to the registered owner, and he could not be effected in any respect by these proceedings. This has been clearly held in the case of Phila. vs. Nell, 25 Supr. Ct., 347.

ORDER.

And now, September 13th, 1915, the above case came on to be heard on exceptions of Elijah Hulem to the Sheriff's special return, and, upon consideration thereof, exceptions are sustained.

Decedents' Estates

P. L. 194, Sect. 64

Schleifer's Estate.

-Promissory Note-Endorsement-Act of May 16, 1901,
-Evidence.

An endorser of a promissory note who had become owner of the note after maturity and who obtained judgment against the maker presented his claim against the estate of a prior endorser in blank at an audit in Orphans' Court. No. evidence was offered to prove that decedent had endorsed the note in blank before maturity.

Held: That under the 64th Section of the Act of May 16, 1901, P. L. 194, proof of such endorsement was essential and claim not allowed.

Held: That the maker was competent to testify for the estate as his interest was not adverse to claimant.

Decedent's Estate. No. 121 May Term, 1915. O. C. Allegheny County.

Elder W. Marshall, for claimant.

Ralph L. Smith, for accountant.

TRIMBLE, J., October 2, 1915.-On the 4th of September, 1910, J. S. Goode became the maker of a promissory note, payable one year after date, to the order of Joseph Grueger, in the sum of $250.00, with interest at four per cent. per annum. The note is endorsed by the following persons and in the following order: O. C. Schleifer; Pay to the order of John B. Prest, without recourse, Jos. Grueger; Jany. 23rd, 1911, John B. Prest. Payment of the note is now demanded of this estate by Joseph Grueger, who became the holder of it after maturity, and who in presenting his claim, offered no proof that the decedent endorsed the note in blank before delivery. Payment is resisted by counsel for the estate, who asserts that O. C. Schleifer is an irregular endorser, and there is no proof that he placed his signature on the note in blank before delivery.

Prior to the passage of the Negotiable Instrument Act of May 16th, 1901; P. L. 194, the presumption was that the payee was the first endorser and subsequent endorsers would not have been liable to him; Aldred's Estate No. 1, 229 Pa., 627. The 64th Section of the Act of 1901, supra, changed the law and imposes a liability on the endorser when he is not otherwise a party to the instrument, and has placed his signature thereon in blank before delivery. It is apparent that proof of endorsement in blank before delivery is essential, and a condition precedent to recovery, and it was upon this theory that recovery was permitted in Aldred's Estate, supra. This is the test of liability, and without it the law is as it was prior to the Act of 1901.

The maker of the note against whom judgment was entered in favor of the holder is a competent witness to testify for the estate, because his interest in the transaction was not adverse to the claimant. An opportunity was given to counsel to produce the maker of the note to testify in behalf of the estate, but the right to have the testimony taken was waived.

The claim will not be allowed.