Horace M. Rumsey, of Philadelphia, for one in law? Defendant's contention upon the appellant. point is well expressed in the argument of Harvey Gourley, of Philadelphia, for ap- its counsel, as follows: pellee. SIMPSON, J. Plaintiff sued defendant to recover back the purchase price of an automobile which he had bought from defendant, under an agreement that if it was not satisfactory the money would be refunded, and which he returned because it was not satisfactory. The verdict and judgment were for plaintiff, and defendant prosecutes this appeal. It appears from plaintiff's evidence, which the jury found to be true, that when he contracted to purchase the automobile it was agreed that if it was not satisfactory to him he could return it, and defendant would either give to him another one or refund the money; and if he took a new one under that arrangement, and it also was not satisfactory, defendant would refund all he had paid. The first automobile he received was not satisfactory, and he returned it, receiving a more expensive one, and paying to defendant the difference in the purchase prices; defendant then again agreeing to refund the whole amount if the new one was not satisfactory. Plaintiff claimed it was not satisfactory, and that he was compelled, in the course of some three months, to send the car back to defendant's shop some 20 or 25 times for adjustment, repairs, and changes. He repeatedly offered to return it, but was requested not to do so, but to allow defendant to try to remedy the defects. Finally defendant's manager fixed a time and place to further discuss the matter with plaintiff; but the manager, did not keep his appointment, whereupon plaintiff promptly thereafter returned the automobile and brought this suit to recover the amount paid. [1] The first four assignments of error complain that the trial judge refused certain points for charge, to the effect that plaintiff was obliged to return the automobile promptly after his discovery that it was not satisfactory. The reason for declining those points was "because the plaintiff testified that he retained the machine at the solicitation of defendants, in order to allow them to make it satisfactory." Plaintiff so testified, and the jury so found; and hence the question to be decided is: Is the reason a valid "We submit: Under the law of rescission, the purchaser is not permitted to excuse delay by urging that he was lulled into acquiescence under any score or for any reason. If he waits, he fails to act promptly, and thus elects not to rescind, for if he would rescind he must do so promptly, and his failure, for any reason, is in the teeth of the duty and necessity thrust upon him to so act, by the law." This statement is neither good law nor good morals, so far as relates to a delay, as here, at the request of defendant. It was considered and decided to be erroneous in Rheinstrom V. Elk Brewing Co., 28 Pa. Super. Ct. 519, and the reasoning of that case meets with our approval. He who requests another to act, or not to act, cannot punish that other for complying with the request. [2] The only other assignments of error relate to the refusal of the court below (1) to instruct the jury to find a verdict for defendant, and (2) to enter judgment non obstante veredicto in favor of defendant. They were argued with, and as dependent upon, the proposition above considered and decided; the only other point suggested being that plaintiff never demanded repayment before bringing suit. It was not necessary so to do, for the suit itself was a sufficient demand. [3] The court below, instead of erring against defendant, erred in its favor. On the question as to whether the automobile was satisfactory, the trial judge charged the jury that plaintiff must have "some reasonable objection that would make him dissatisfied with it," and, if the defects in the machine were "such as could be remedied by some ordinary adjustment which defendants testified they were willing to make," the refusal to keep it would not be reasonable. In all our cases from Singerly v. Thayer, 108 Pa. 291, 2 Atl. 230, 56 Am. Rep. 207, to Williams v. Notopolos, 259 Pa. 469, 103 Atl. 290, it has been uniformly held that such objections need only be made in good faith, and not merely capriciously, in order to justify the returning of an article, because it violates a contract that it shall be satisfactory. The judgment is affirmed. (106 A.) LEARY V. McILVAIN et al as though heard by it (McCauley v. Imperial Woolen Co., 261 Pa. 312, 319, 104 Atl. 617), and, pursuant to that agreement and upon (Supreme Court of Pennsylvania. Feb. 10, consideration of all the evidence in the case, 1919.) MASTER AND SERVANT 405(4)-AWARD BY Decision of Workmen's Compensation Board that woman was entitled to compensation for husband's death as result of accident or injury in course of his employment held sustained by evidence that his bruised body was found between wheels of wagon in a washout, that he was a sober man and in good health, and report of coroner's physician stated that death was probably due to injuries. an award in favor of claimant was made, from which defendants again appealed, and upon dismissal of their exceptions by the common pleas, the present appeal was taken. The contention here, as in Murdock v. New York News Bureau, opinion filed here with, is that the record is destitute of evidence to support the conclusion reached by the board to the effect that deceased met his death as the result of an accident occurring in the course of his employment within the meaning of the Workmen's Compensation Act (P. L. 1915, p. 736). The find Appeal from Court of Common Pleas, Phil-ings and opinions filed show that Leary, who adelphia County. Proceedings by Marguerite F. Leary against J. Gibson McIlvain and another, trading as J. Gibson McIlvain & Co., and the Manufacturers' Casualty Insurance Company. From a judgment sustaining an award of the Workmen's Compensation Board, defendants appeal. Affirmed. Argued before STEWART, MOSCHZISKER, FRAZER, WALLING, and SIMPSON, JJ. Archibald T. Johnson and Russell Duane, both of Philadelphia, for appellants. Jacob Mathay, of Philadelphia, for appellee. FRAZER, J. Claimant is the wife of Dennis F. Leary, whose dead body was found by a park guard, lying under a wagon attached to a team of horses he was employed to drive; the accident having occurred while deceased was returning the team to the stable at the end of his day's work. A claim made before the Workmen's Compensation Board was resisted on the ground that no evidence was adduced establishing the death to be the result of an accident or injury occurring in the course of employment. This contention was sustained by the referee and the claim disallowed; on appeal, however, to the board the decision was reversed, and an award made in favor of claimant. This award .was subsequently set aside by the court of common pleas for the reason the board was without authority to reverse the referee's findings, unless after a hearing de novo, which was not had, and the case remanded to the board, with directions to proceed in the manner provided by the statute, and make such disposition of the claim as the evidence produced before them warranted. At the hearing the parties offered no evidence, but agreed the board should adopt and consider, as proofs in the case, the testimony taken before the referee was a teamster in the defendant's employ, was found dead about 7:30 on the evening of December 29, 1916, in Cobb's Creek Park, near Sixty-Fourth and Webster streets, Philadelphia. His body was lying under the wagon with the left front wheel against the face and the reins in his hands. The wheel of the wagon, as well as the body of deceased, upon which there were bruises and blood stains on the neck, was in a gully, or washout, when discovered by the park officer. No post mortem was made to ascertain the cause of death; the report of the physician filed by the coronor, however, stated death was probably due to bodily injuries. Deceased was a man in excellent health, and left defendant's place of business early in the morning with his horses and wagon to deliver lumber in a nearby town. Accompanying him on a similar errand was a fellow employé named Dempsey, also driving a team. The day was "bitterly cold," and on the way home, Leary having complained of being chilly, the two drivers stopped at a saloon, where each obtained a drink of liquor. Upon leaving the saloon Dempsey drove his team in advance of Leary. Nothing appears to show what happened subsequent to this until Leary's body was discovered, although there is a finding that deceased was seen driving in various directions in the neighborhood shortly before his body was found, apparently attempting to either find his way home, or for the purpose of avoiding streets in the neighborhood at the time considerably torn up owing to improvements under way. The record discloses no previous illness of deceased and though he had taken "a very small whisky" because of the cold, he had always been temperate and never known to be intoxicated. The board accounted for deceased's presence in the park by stating he had evidently lost his way in the dark, and concluded death was caused by reason of the front wheel dropping into the gully and throwing deceased forward and under the wagon, and, further, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes that death occurred, in the course of his employment, from injuries sustained by his fall. | While it is true the referee previously reached a contrary conclusion, the difference of opinion, based on the testimony presented, does not warrant interference by this court. The findings referring to the condition and position of the body, and the circumstances previous to its discovery, as well also as that referring to the wounds on the body, indicate the board had before it evidence which fairly supported its conclusion that death resulted from injuries received in an accident occurring in the course of deceased's employment. The judgment is affirmed. FINLEY V. PHILADELPHIA RAPID TRANSIT CO. (Supreme Court of Pennsylvania. Jan. 20, 1919.) 1. CARRIERS 320(30)-PASSENGERS-INJUBY-BINDING INSTRUCTIONS. In passenger's action for injuries from sudden starting of car while he was about to enter, refusal of defendant's motion for binding instructions on ground that no damages resulted from the admitted negligence held proper. 2. JUDGMENT 199(3)-JUDGMENT NON OBSTANTE VEREDICTO EVIDENCE. In passenger's action for injury from the sudden starting of a car while he was endeavoring to enter it, defendant's motion for judgment non obstante veredicto held properly overruled, where there was some injury from defendant's negligence, though part of the injuries may have resulted from some other cause. Appeal from Court of Common Pleas, Philadelphia County. Trespass for damages for personal injury by Thomas J. Finley against the Philadelphia Rapid Transit Company. Verdict and judgment for plaintiff for $4,820.96, and judgment thereon, and defendant appeals. Affirmed. Argued before STEWART, MOSCHZISKER, FRAZER, WALLING, and SIMPSON, JJ. Bernard J. O'Connell, of Philadelphia, for appellant. Francis M. McAdams and William H. Wilson, both of Philadelphia, for appellee. SIMPSON, J. [1, 2] Plaintiff sued the defendant company to recover damages for injuries received by him as a result of the sudden starting of one of its cars while he was endeavoring to enter it as a passenger. The verdict and judgment were for the plaintiff, and defendant appeals, assigning as error only the refusal of its point asking for binding instructions in its favor, and the dismissal of its motion for judgment non obstante veredicto. In this court defendant's counsel frankly admits, "That the appellee was thrown by a trolley car under negligent circumstances must be accepted as a proven fact," and does not allege contributory negligence. His only claim is that the evidence did not justify the conclusion that "the wrongdoer's act produced the injuries complained of." Admittedly the record shows that at least some of the things complained of were the result of defendant's negligence. Plaintiff was thrown from the car negligently; was rendered unconscious; as defendant's motorman testified, plaintiff was found an hour later at the place where he alleges he had endeavored to board the car; and two days later, when he fully recovered consciousness he found the fingers of his hand had been cut off in the hospital to which he had been taken by defendant's employés. It is clear, therefore, that for the wrong done him he was entitled to some damages, whether or not the injury to his hand was the result of defendant's negligence. Hence the point asking for binding instructions and the motion for judgment for defendant non obstante veredicto were properly dismissed; for each is predicated upon the claim that plaintiff is entitled to no damages. The judgment is affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (106 A.) In re GRUBB'S ESTATE. by her father, and, upon her death, was to be divided "in the same trust." Turning to the will of the father there is found the ex Appeal of PENNSYLVANIA CO. FOR IN-press direction in his provision for Mrs. Beall SURANCES ON LIVES AND GRANTING ANNUITIES. that upon her death the descendants of any one of her children who might die before her should take the deceased child's share, "per stirpes, upon the principle of representation." As the testatrix clearly indicated her inten"CHIL- tion that the trust which she created for her daughter should be "in the same strict trust, to be divided in the same trust" as was established by her husband, we have no doubt as to the correctness of the conclusion reached by the court below. Where husband's will directed that on a daughter's death the descendants of any one of her children dying before her should take deceased child's share "per stirpes under principle of representation," the word "children," as used in wife's will, bequeathing personal property to daughter on same trust as that appointed by husband's will, and providing that on daughter's death property should be divided equally among her children, included a grandchild of daughter. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Children.] * * Appeal dismissed at appellant's costs. BELMONTE v. CONNOR. (Supreme Court of Pennsylvania. Feb. 17, 1919.) Appeal from Orphans' Court, Philadel- MASTER AND SERVANT 417(7)—WORKMEN'S phia County. The Pennsylvania Company for Insurances on Lives and Granting Annuities, trustee for M. Lilly Beall and Florence B. Thornton, appeals from a decree in the estate of Mary B. Grubb, deceased, dismissing exceptions to adjudication of auditing judge making distribution under the will. Appeal dismissed. Argued before BROWN, C. J., and STEWART, MOSCHZISKER, FRAZER, WALLING, SIMPSON, and KEPHART, JJ. Maurice B. Saul and Raymond M. Remick, both of Philadelphia, for appellant. C. E. Morgan, of Philadelphia, for appellee. PER CURIAM. The learned auditing judge concluded with some hesitation that the word "children" as used by the testatrix in making provision for her daughter, Mary Lilly G. Beall, included a grandchild of the daughter. This was approved by the court in banc. The will of Clement B. Grubb, the husband of the testatrix, must be read into her will in determining what she intended by "children," for her words are: "All moneys, stock, bonds and mortgages, I bequeath to my daughter Mary Lilly G. Beall I leave in the same strict trust, as my husband appointed in his will, for my daughter Mary Lilly G. Beall, and after her death to be divided equally, in the same trust, among Mrs. Beall's three daughters, or more, should there be more children at the time of Mrs. Beall's death." The trust for Mrs. Beall was to be the "same strict trust" as was created for her COMPENSATION VIEW. BOARD-EMPLOYMENT-RE tion board that a workman at the time he was A finding by the referee and the compensakilled was an employé and not an independent contractor is conclusive, and not reviewable by the court on appeal. Appeal from Court of Common Pleas, Philadelphia County. Proceeding by Catarina Belmonte against Thomas Connor. From a judgment dismiss ing an appeal from an award of the Workmen's Compensation Board, affirming an award made by referee on his finding that plaintiff's husband was an employé at the time of injury, defendant appeals. Appeal dismissed, and award affirmed. Argued before BROWN, C. J., and STEWART, MOSCHZISKER, FRAZER, WALLING, SIMPSON, and KEPHART, JJ. William G. Wright and R. P. F. Maxwell, both of Philadelphia, for appellant. Owen J. Roberts and Francis S. Goglia, both of Philadelphia, for appellee. PER CURIAM. The only question before the referee and the compensation board, which was one of fact, was as to the relation which the husband of the appellee sustained to the appellant at the time he was killed. The finding of the board was that he was an employé, and not an independent contractor, as the defendant contended. This finding is conclusive. Messinger v. Lehigh Valley R. R. Co., 261 Pa. 336, 104 Atl. 623. Appeal dismissed and award affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 7 Argued before STEWART, MOSCHZISMURDOCK v. NEW YORK NEWS BU-KER, FRAZER, WALLING, and SIMPREAU et al. (Supreme Court of Pennsylvania. Feb. 10, erce. 1919.) SON, JJ. Henry A. Craig and Russell Duane, both of Philadelphia, for appellants. Louis Levinson, of Philadelphia, for ap FRAZER, J. William S. Murdock, the husband of claimant, was employed as a lineman by the New York News Bureau, and, while engaged in the course of his employment at Eighth and Master streets in the city of Philadelphia, came in contact with a wire heavily charged with electricity, which caus 1. MASTER AND SERVANT 416 WORK-pellee. MEN'S COMPENSATION ACT QUESTION OF LAW-APPEAL TO COMPENSATION BOArd. Contention that there was no evidence to sustain referee's conclusion that the deceased employé's death was the result of an accident raised a question of law, which the Workmen's Compensation Board had power to determine under Workmen's Compensation Act June 2, 1915, § 420, upon consideration of the legal adequacy of the testimony taken before the ref-ed him to fall from a pole upon which he was working to the street, a distance of 28 2. MASTER AND SERVANT 418(6)-WORK-feet. Upon striking the ground his knees MEN'S COMPENSATION ACT FINDING OF "doubled up" and came violently in contact COMPENSATION BOARD-REVIEW. with his chest, causing considerable pain durUnder the Workmen's Compensation Act of ing the day, and indicating the fracture of June 2, 1915, review by the Supreme Court is one or more ribs. Whether or not his ribs on certiorari only, and, while it may not conwere broken, the physician who made an exsider the testimony, it is authorized to examine amination was unable to determine. The the findings and reasons stated in the adjudications of the referee, the board of compensation, and the court below to determine whether the decision is founded upon a proper basis. 3. MASTER AND SERVANT 405(4)-WORKMEN'S COMPENSATION ACT-DEATH AS RESULT OF INJURY-EVIDENCE. In widow's proceeding, under Workmen's Compensation Act June 2, 1915, an award by referee, confirmed by Workmen's Compensation Board and the court below, will be affirmed on appeal, where evidence supports findings that deceased, a lineman, fell from a pole after contact with charged wire, that on striking the ground, his knees doubled up and violently struck his chest, causing pain and indicating fracture of rib, and that a week thereafter lobar pneumonia caused his death. 4. MASTER AND SERVANT 405(4)-WORKMEN'S COMPENSATION ACT — INJURY EVI DENCE. - That a physician who examined deceased lineman failed to discover a fractured rib did not detract from weight to be given undisputed fact that he had received a blow on the chest when he fell from a pole, after contact with charged wire, and that blow was followed by continuous pain which a week later resulted in his death from lobar pneumonia. pain in the chest continued, making breathing difficult. After three days, Murdock returned to his place of employment, but, on account of the constant severe pain in his chest, did not engage in his usual work, and later was obliged to return home and again call a physician, who then diagnosed his case as lobar pneumonia, from which he died ten days after the accident. These facts as stated are taken from the findings of the referee in proceedings under the Workmen's Compensation Act, and the conclusion of the referee, based upon them, is that death was due to lobar pneumonia resulting from the fall. The referee's findings were confirmed by the Workmen's Compensation Board, and the decision of the board was, in turn, sustained by the court below. From the action of the court in dismissing exceptions to the conclusions this appeal followed. [1, 2] The single assignment of error is to the decision of the court below in dismissing exceptions to the action of the board, and in refusing to set aside the award on the ground of there being no evidence to sustain the conclusion of the referee to the effect that the disease causing Murdock's death was the result of the accident. This contention raises Appeal from Court of Common Pleas, Phil- a question of law which the board had power adelphia County. Proceeding by Freda Murdock against the New York News Bureau and the Employers' Liability Assurance Corporation, Limited, insurer, for compensation for the death of plaintiff's husband, William S. Murdock. From a judgment dismissing an appeal from a decision of the Workmen's Compensation Board awarding compensation, defendants appeal, Affirmed. to determine under section 420 of the Workmen's Compensation Act of June 2, 1915 (P. L. 736), upon consideration of the legal adequacy of the testimony taken before the referee. McCauley v. Imperial Woolen Co., 261 Pa. 312, 319, 104 Atl. 617. Review by this court under the above act is on certiorari only, and, while we may not consider the testimony, we are authorized to examine the findings and reasons stated in the adjudications of the board and of the referee, as For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |