In re Child Labor. could do little more than review, without advancement, some of the studies they have already covered, and at the same time they would lose, because of the interruption, the benefit of their work in their chosen trades or vocations. Then again, the families of these minors in the same full reliance of the then law of the State and in the expectation that it would so continue, have arranged and shaped their affairs in accordance with their new conditions. Many have moved into new industrial centers, and many have bought homes under the beneficent Building and Loan Association installment plan, or have otherwise incurred continuing obligations, partly at least, in reliance upon the continual employment of their children. The true legislative intent was not to bring about sudden chaos in the lives of these children and their parents, and it is unwise to so apply the law as to produce such an undesirable condition. Furthermore, while the impelling influence in determining the proper application of this legislation must always be the sincere regard for the welfare of the children affected, I am not unmindful of the fact that many industries of the Commonwealth have based their business upon the continuation of the employment of these children who were properly employed under the then law of the State, and the sudden withdrawal of many thousands of such children from industrial service would work a hardship which should be avoided if it can be done without positive harm to the children, and this can be easily accomplished by the proper co-operation of all having to do therewith. One of the distinguishing features of the new Act is the provision for the compulsory attendance of children employes in so-called continuation schools, the purpose underlying this legislation being to continue the education of children already in industry and to provide for the further instruction of those leaving school after January 1, 1916, and entering industrial life. This situation, as already indicated, calls for the application of a broad, administrative discretion, and having due regard for the general policy of the State and for the interest and welfare of all concerned, you may, as I have heretofore advised you, consider children's working certificates cbtained under Acts of 1909 and 1911. valid after January 1, 1916, provided, of course, that the minors holding them are to be subject to all the other provisions of the Act of 1915, such as the compulsory attendance of continuation schools and the prohibition against employment of more than fifty-one hours per week, including school attendance, etc. Very truly yours, FRANCIS SHUNK BROWN, Attorney General. Iseman et al. vs. Book Shoe Company, a Corporation. New Trial Negligence- Personal Injuries- -Pain and Sufferingof--Charge of the Court. -Evidence In the trial of a negligence case for personal injuries at the close of the charge, counsel requested the Court to submit the question of pain and suffering to the jury as an element of damages. This request was refused on the ground that no evidence had been submitted that plaintiff had endured pain and suffering as a result of his injuries. On motion for new trial. Held: This was error as pain and suffering would be presumed and plaintiff was not required to submit evidence and his rights were infringed when this question was taken from the jury. New trial granted. Sur motion of plaintiff for a new trial. No. 763 October Term, 1913. C. P. Allegheny County. G. W. Williams and L. K. & S. G. Porter, for plaintiff. HAYMAKER, J., November 10, 1915.-This is an action to recover damages for personal injuries. The parents of the injured minor plaintiff each recovered verdicts in small amounts. The minor, Adolph Iseman, recovered a verdict in the sum of $1,200. The minor was a salesman in the defendant's shoe store and claimed that a stepladder, known to defendants to be defective, and used by salesmen to reach the shelving, fell and struck him on the head. He was removed to the hospital, and later a portion of the skull was trephined and a blood clot removed. It was contended by plaintiff that traumatic epilepsy and partial paralysis resulted. It is unnecessary to state at length the contention of the respective parties as shown by the testimony, but the case was one requiring submission to the jury. At the conclusion of our charge plaintiffs' counsel called our attention to the fact that we gave no instruction as to pain and suffering, but inasmuch as no witness made any direct reference to that element in the plaintiffs' case, we declined to have the jury take it into consideration. We were of the impression at the time that, as neither the plaintiff nor any of his witnesses said that he had suffered pain, we were not obliged to charge that pain and suffering was an element for which compensation should be allowed. Were we right in so holding? If we were, then in all cases of personal injury it would be necessary for the plaintiff to prove specifically, or in so many words, that pain and mental anguish were actually suffered, otherwise there could be no allowance or compensation for the same. Νο one could question the right of plaintiff to say "I suffered great pain," or "I suffered a great deal," and the like, but, is he bound to make use of such, or similar, expressions in order to have the question of pain and suffering submitted to a jury? We do not think so, and doubtless we were in error in holding the contrary. The degree and intensity of pain, physical and mental, cannot be adequately conveyed to the senses by the mere words of the afflicted, but when he says that his hand or foot was crushed, or a member of his body mangled, the mind forms some idea of the resulting pain, not necessarily from a like experience, but from the fact that we have all, at some time, experienced physical injury and the consequent pain, and have observed injuries in others and the apparent painful effects. "Owing to its nature the fact or extent of suffering is difficult of proof by direct evidence and the law does not require such evidence. It is sufficient that an injury is proved, from which suffering will naturally result. Iseman et al. vs. Book Shoe Company, a Corporation. This does not mean that pain and suffering may not be shown. The doctrine merely goes to the extent of holding that such evidence is not absolutely essential to the recovery." Thompson on Negligence, Vol. 6, Sec. 7317. In C., B. & Q. R. Co. vs. Warner, 108 Ill., 538, it was held that where a man had his arm crushed and amputated, pain and suffering was an element to be considered by the jury, regardless of any testimony directly as to pai.n Likewise it was held in Gaguier vs. City, 96 N. W. Rep., 841, that pain and suffering need not be pleaded or specifically proved, and that physical injury being proved, mental suffering was to be presumed. In that case the Court spoke of the great uniformity in the authorities to that effect. To the same effect are the cases of Ry. Co. vs. Curry, 64 Texas, 85; 1 Smith on Damages, 766; Phillips vs. Hoyle, 4 Gray (70 Mass.), 568; Wright vs. Crompton. 53 Ind., 337; Brown vs. Hannibal & St. Joseph Ry. Co., 99 Mo., 310; Gronan vs. Kukkuck et al., 59 Iowa, 18; Fry vs. Hillan, 37 N. W. Rep., 359; Ry. Co. vs. Hubbard, 76 S. W. Rep., 764. In Clark vs. Manchester, 64 N. H., 471, it was held that proof of death from drowning alone, without other evidence, was sufficient proof of pain. The only case cited by defendant's counsel is Wallace vs. Penna. Railroad, 219 Pa., 327, which does not involve the questions raised in the motion and has nc application. In taking from the jury the right to compensate the injured plaintiff for pain and suffering, merely because no one testified specifically that such was endured by him, when pain and suffering in some degree necessarily follows such an injury, we deprived the plaintiff of a right to which he was otherwise entitled. And now, November 10th, 1915, new trial granted as to Adolph Iseman, a minor, by his mother and next friend Minnie Iseman; and rule discharged as to John Iseman and Minnie Iseman, parents of Adolph Iseman. Sureties- -Agreement· McAvoy et al. vs. Steinert et al. Measure of Liability-Joint and After an appeal from an award of arbitrators and while the matter was still in litigation, three of the directors of the defendant corporation signed an appeal bond. The sureties on the appeal bond and the other directors subsequently made an agreement stipulating "the said parties, all of whom are or were directors in the said Fort Pitt Mining & Milling Company at the time the said obligation was made shall share the loss, if any, and be equally liable for the payment of said judgment, and shall be equally and mutually entitled to recourse for any moneys advanced by them against the Fort Pitt Mining & Milling Company." Judgment was recovered and two of the parties to this agreement, the plaintiffs, paid. They filed this bill to enforce contribution. It was alleged that the company was insolvent. One of the eight directors did not sign the agreement. Two of the directors were insolvent. Defendant refused to pay on the ground that the agreement was not to be binding unless all signed and one did not sign. The questions raised related not only as to the liability of defendants, but also as to the measure of liability, whether one-eighth, one-fifth or one-third. Held: That the agreement created a several and not a joint liability on the part of each party thereto, and that each of the defendants was liable to the plaintiffs jointly for one-eighth of the amount paid in satisfaction of the judgment. In Equity. No. 865 October Term, 1914. C. P. Allegheny County. James L. Wehn and H. F. Stambaugh, for plaintiffs. Thomson & Bradshaw, A. Devoe P. Miller and E. E. Fulmer, for defendants. STATEMENT OF THE CASE. CARPENTER, J., July 9, 1915.—The plaintiffs and defendants are stockholders in and directors of the Fort Pitt Mining and Milling Company, a corporation. Suit was brought against the company and in due course an award of Arbitrators obtained for $4,483.25, from which the defendant Company appealed, giving bond with H. J. McAvoy and A. E. Hutchison, plaintiffs herein, and Edward G. Steinert, one of the defendants herein, as sureties Subsequently judgment was recovered in Court. Suit was brought on the appeal bond and judgment obtained. This judgment was affirmed by the Supreme Court. The amount due on the judgment, after deducting certain credits, was paid into Court by. Hutchison and McAvoy, and the judgment marked for their use. Some time after the award was appealed from an agreement was prepared which, after briefly reciting the facts, provided inter alia that the parties thereto agreed with each other and particularly with McAvoy, Hutchinson, and Steinert, that in case of adverse judgment in the Court of Common Pleas No. 1, "the said parties, all of whom are or were directors in the said Fort Pitt Mining and Milling Company at the time the said obligation was made shall share the loss, if any, and be equally liable for the payment of said judgment and shall be equally and mutually entitled to recourse for any moneys advanced by them against the Fort Pitt Mining and Milling Company." This agreement was signed by the parties to this suit. The bill sets out the payments made by plaintiffs, including costs, attorneys fees, etc., aggregating $7,374.90, of which $6,478.80 was debt and interest and $896.10 fees, costs and expenses. The bill also alleges insolvency of the Company and avers that its assets have been sold by the sheriff. It is also averred that defendant Steinert is insolvent. Plaintiffs claim contribution from Weinman and Fulmer and aver that the latter has no assets and therefore claim contribution from Weinman of an "equal share of their loss incurred under said appeal bond." The defendant Weinman admits signing the agreement with the distinct under McAvoy et al. vs. Steinert et al. standing that it should not be binding upon him or upon any of the others unless all of the directors, excepting the resident director in the District of Columbia, should become bound in like manner by signing said agreement. He avers that some of the directors refused to sign and that the agreement never was in force. The controversy pivots upon the facts immediately connected with the signing of the agreement; plaintiffs contending that there was no such understanding or stipulation as is alleged by Weinman whilst, on the other hand he contends that he signed with the distinct understanding that unless all signed none would be bound. There is also a dispute as to the measure of liability, if any, incurred by each party signing, that is, was it one-eighth, one-fifth, or one-third; it being alleged that there were eight who should have signed before any were bound, five of whom signed and two of those signing having since become insolvent. FINDINGS OF FACT. First. The parties to this suit were stockholders and directors in the Fort Pitt Mining and Milling Company in April, 1909, when suit was brought, in which an award of arbitrators was obtained, against the Company. Second. An appeal from the award was entered and bond given as required by law, the plaintiffs herein and Edward G. Steinert, one of the defendants, becoming surety on said bond. Third. Judgment against the Company was subsequently obtained and suit was then brought on the appeal bond and judgment thereon recovered against the sureties and was paid by the plaintiffs herein, the judgment being thereupon marked for their use. Fourth. On May 11th, 1910, an agreement was prepared for signature by all the directors except........ who resided in the District of Columbia and who had no interest in the controversy. Fifth. The agreement was signed by the plaintiffs and the defendants herein, they being five of the eight directors. Sixth. The appeal bond referred to in the third finding was not given pursuant to, or in reliance upon, any promise of Charles R. Weinman. Seventh. The agreement, a copy of which is marked "Exhibit A," attached to the bifl, was signed by Charles R. Weinman for the purpose of obligating himself to pay one-eighth of any sum that might be recovered in the suit against the Company, referred to in findings one and two, and was signed for the sole purpose of relieving the parties to the bond to that extent. Eighth. The collateral security delivered to the bondsmen as indemnity, etc., is worthless. CONCLUSIONS OF LAW. First. That the plaintiffs' bill sets forth a proper cause for adjudication by a Court of Equity. Second. That the agreement "Exhibit A" attached to the bill created a severai and not a joint liability on the part of each party thereto. Third. That each of the defendants is liable to the plaintiffs jointly for one-eighth of the amount paid in satisfaction of the judgment, with costs of said suit, recovered against the Company in the Court of Common Pleas. OPINION. The rights and liabilities of the parties to this litigation depend upon the facts at the time the agreement "Exhibit A" was prepared and signed; |