there was no evidence of an intention to resume, may have led the jury to practically disre such occupation. [Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 490-492, 501; Dec. Dig. 173. Appeal from Court of Common Pleas, Delaware County. gard it. To say that the medical testimony curate. It appears from the record that two was about equally divided was hardly acphysicians testified that Mrs. Frysinger had neuritis, and one of them said that it was Action by Edward J. Frysinger and Edna not likely that she would ever be entirely Carolina Frysinger, his wife, against the cured. But, on the other hand, five physiPhiladelphia Rapid Transit Company. There cians, including her regular medical attendwas verdict for plaintiffs in the sums of $300 ant, who was called by plaintiffs in the first and $2,250, respectively, and judgment there-instance, testified that she did not have on, and defendant appeals. Reversed. neuritis, was not permanently injured, and Argued before BROWN, C. J., and POT- probably would be well as soon as the litiTER, ELKIN, STEWART, and FRAZER,gation was ended. The preponderance of the JJ. medical testimony was in favor of the contention of defendant, and this should have been pointed out to the jury, leaving to them the credibility of the witnesses and the final determination of the question whether the weight of the evidence was upon one side or the other. er was able to earn as a professional pianist at a period some two or three years prior to the accident. She had not engaged in this occupation for that length of time, and had apparently given it up, and there was no evidence that she intended to resume it. There was no medical testimony as to her inability to teach music. One of the physicians was of the opinion that she might suffer pain during a period of some two years, but he did not testify that it would be such as to affect her earning power. Yet under the charge the jury were at liberty, in estimating the damages, to take into consideration this alleged loss of earning power, based on her earnings at a previous period, when she was actively engaged as a professional musician. In referring to her occupation as such, the trial judge said to the jury: POTTER, J. This was an action of trespass, brought by Edward J. Frysinger and Edna Carolina Frysinger, his wife, to recover [2] In the eleventh assignment of error the damages for injuries alleged to have been question is raised whether, as proof of loss sustained by the wife through the negligence of earning power, evidence was properly adof the defendant company. From the ev-mitted as to the amount which Mrs. Frysingidence offered on behalf of the plaintiffs it appears that on June 22, 1913, they were passengers on a trolley car of defendant company running from Chester to Media. While descending a hill on defendant's single track road, they saw another car approaching on the same track. Fearing a collision, they jumped from the car, and Mrs. Frysinger fell to the ground. She claimed that the result of the shock was to leave her in a nervous condition, which was manifested chiefly by neuritis in her left arm. Upon the trial, evidence was offered on behalf of plaintiffs which established the facts of the accident, and medical testimony was offered tending to show the extent of Mrs. Frysinger's injuries. Defendant did not dispute the testimony as to the accident, but submitted evidence tending to show that Mrs. Frysinger did not suffer from neuritis, but that her condition was properly described as neurasthenic, due largely to excitement caused by the pending litigation, which would probably pass away after the trial. The questions of defendant's negligence and plaintiffs' contributory negligence were submitted to the jury, who found a verdict in favor of plaintiffs. From the judgment entered thereon defendant has appealed. [1] In the fourth assignment of error, counsel for appellant allege that the court below erred when it said to the jury: "As in cases of this kind a great deal of medical testimony has been produced, and as usual about equally divided." It is suggested that in using this language the court inadvertently, but practically, intimated to the jury that the medical testimony was of little value, as it made about as much in favor of one side as the other. We think the statement did tend to minimize the force of the medical testimony, and it "Whether she would ever be engaged in it again, or intended to abandon it, we don't know. aj * * To what extent this [her condition] would have an effect upon her ability to teach would be conjecture, largely, of course. But you can take that into consideration in passing upon what will compensate her for her loss." Yet the evidence showed that Mrs. Frysinger had not for two or three years been earning anything, and that she was at the time of the accident a married woman, living with her husband. Nor was it shown that she had any intention of resuming her old occupation, or that any such intention was thwarted as a result of the accident. Nor did it appear what the probabilities were of her being able to secure employment at her former occupation, in case she did wish to resume it. It is true that, in proving loss of earning power as an element of damage in case of personal injury, lessened capacity to earn in any available occupation may be shown; but it must appear by proper and satisfactory proof, and the amount of the loss must not be left to mere conjecture. Helmstetter v. Pittsburgh | fault of appointment to his lawful heirs in fee. Rys. Co., 243 Pa. 422, 90 Atl. 203. With respect to the earning power of Mrs. Frysinger at the time of the accident, and as to the amount of its reduction by anything resulting therefrom, we feel that in submitting this case to the jury altogether too much was left to conjecture. reason This" it was said, "brings us to the simple of it, for his own use, benefit, and support, as inquiry: Can the owner of property so dispose to put it beyond the reach of liability for his future debts; he being and continuing sui juris, and there appearing to be no liability and thus retain the temporal ownership therefor, excepting to withdraw it from such without its incidents? This would be a starThe fourth, sixth, and eleventh assign- tling proposition to affirm. It would revolutionments of error are sustained, and the judg-ize the credit system entirely, destroy all faith ment is reversed, with a venire facias de in the apparent ownership of property, and repeal all our statutes and decisions against frauds. Such consequences from judicial action need not be deprecated in advance, for they never can occur. * * What object there could have been here for this extraor dinary settlement, other than to protect the May 17, settlor's property against future indebtedness, does not appear." novo. (249 Pa. 546) RIENZI v. GOODIN. (Supreme Court of Pennsylvania. 1915.) FRAUDULENT CONVEYANCES ITY-RIGHTS OF CREDITORS. 111-VALID A person sui juris cannot, as against creditors, settle his property in trust for his own use for life, reserving the power to divest it by will, and property so transferred is subject to attachment at the suit of a creditor of the settlor. [Ed. Note.-For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 361-363; Dec. Dig. 111.] Appeal from Court of Common Pleas, Philadelphia County. Action by Luigi Rienzi against Helen M. From a judgment for defendant Goodin appeals. Af Goodin and others. plaintiff, firmed. The following opinion was rendered below by Martin, P. J.: On November 4, 1914, plaintiff commenced suit to recover from Helen M. Goodin, the defendant, a balance due for wearing apparel. Judgment was entered for want of an affidavit of defense, and damages were assessed in the sum of $2,070.18. A writ of attachment sur judgment was issued and served on the Land Title & Trust Company and Walton Penniwell, garnishees. Interrogatories were filed, and in the answers it was stated that on December 6, 1911, Helen M. Goodin transferred to Walton Penniwell and the Land Title & Trust Company certain personal property, in trust to pay the income to her during life, and upon her death to transfer the principal unto such persons as she might appoint by will, in default of appointment, to her children and the issue of deceased children, and in default of both appointment and children, or issue of deceased children, then to such persons as would be entitled under the intestate laws; and at the time of the service of the attachment the garnishees held securities belonging to principal amounting to $90,490.33, and $440.39 income. A rule was entered for judgment. At the argument it was admitted that the defendant Helen M. Goodin has no issue, is unmarried, and was not in contemplation of marriage at the time of the execution of the deed. The deed of trust, a copy of which is attached to the answers, is a voluntary deed in consideration of $1. A careful perusal of its terms, in the light of the circumstances of the settlor, discloses a clear purpose to place her property beyond the reach of creditors. The public policy affecting such settlements is stated in the opinion of Mr. Justice Thompson in Mackason's Appeal, 42 Pa. 330, 82 Am. Dec. 517. In that case there was a deed executed by one sui juris, in trust for his own use for life, over to his appointees by will, and in de In Ghormley v. Smith, 139 Pa. 584, 21 Atl. 135, 11 L. R. A. 565, 23 Am. St. Rep. 215, it was held that a single woman, not in contemplation of marriage, cannot settle property upon trusts in such a way that she shall receive the income during her life, and have the power of disposition of the property at her death by appointment, and yet it shall not be responsible for liability for her lawful debts. It was said by Mr. Justice Clark: "It is not pretended that the trust in question is sustainable as a trust for coverture, or for the separate use of the grantor, for she was then unmarried, and, although she was in a very short time afterwards married, it was not shown, nor is it alleged, that it was created in contemplation of that event. No such question arises, and it is not necessary for us to consider the effect of the deed, if the grantor at the time had in contemplation the marriage relation which was afterwards formed." After quoting from Mackason's Appeal, supra, the court said: "The cases are not precisely similar, but in both it is clear that the design of the deed was to limit it for life, with power to dispose of it at death, the property so that the grantor should enjoy and yet that it should not be subject to the In both cases, not grantor's debts. only the purpose, but the only purpose, was that it should not be subject to the grantor's debts. the grantor should enjoy the property, and that The difference most strongly urged is that the grantor in Mackason's Appeal was a man, whilst here the grantor is an unmarried woman; but we think no principle or present policy of the law requires any distinction, in this respect, between the sexes. It may be that, if the rights of creditors had not intervened, the trust would be deemed irrevocable, and would be upheld, even as against the grantor herself; but as against creditors, either prior or subsequent, the terms of the trust would not avail. The policy of our law is otherwise, and in Mackason's Appeal it has been plainly so declared." * The principle was reaffirmed in Nolan v. Nolan, 218 Pa. 135, 67 Atl. 52, 12 L. R. A. (N. S.) 369. The settlor in that case was a widow The deed of trust, dated in with six children. 1898, reserved to the settlor the income for life, and directed payment of the principal upon her death to such persons as she appointed by will, and in default of appointment to her next of kin. In 1904 the settlor confessed judgment, an attachment execution issued, and was served on the trustee as garnishee. It was said by Mr. Justice Elkin: "It is conceded that at the time of the execution of the deed of trust the indebtedness on which the present proceeding is founded had not been created, nor was it in contemplation, nor is there any evidence to show that the settlor intended to withdraw the property set aside from the reach of the attaching creditor. * * * As against existing creditors * * other portion upon the death of the father. such a conveyance would be fraudulent, and in order to make it valid as to subsequent creditors it must appear that the settlor has divested himself of all rights of ownership in and control over the property thus conveyed, reserving only to himself the right to receive the income during life. * Even in such a case the income would be considered assets subject to attachment by a creditor of the settlor. It is against public policy, and not consonant with natural justice and fair dealing, as between In the present case Helen M. Goodin, the setdebtor and creditor, that a settlor should be tlor, has retained the unrestricted power by appermitted to play fast and loose with his prop-pointment to dispose of the entire corpus of erty, in such a manner as to have the use of the the estate by the terms of her will to others income during life and the right of disposing than children or issue of deceased children, thus of the principal by will at any subsequent time divesting the remainder in them, if children he chooses to exercise the power, thus giving are ever born to her. The case is ruled by him all of the substantial benefits arising from Mackason's Appeal, supra, and is not affected the ownership thereof, while he has safely put by the law applicable to the special circumstanchis property beyond the reach of creditors. es of Solms v. Trust Co., 16 Wkly. Notes * The learned court below in placing a Cas. 80. construction on this instrument held that it was the primary object thereof to provide for the settlor herself by securing the income of the trust estate, and at the same time withdrawing it from the grasp of creditors. A person sui juris cannot, as against creditors, either prior or subsequent, settle his property in trust for his own use for life and over to his appointees by will, and in default of such appointment to the use of his lawful heirs in fee. Mackason's Appeal, 42 Pa. 330 [82 Am. Dec. 517]. In that case it was expressly held that of defense. property so settled is assets in the hands of the trustee for the payment of debts, whether contracted prior or subsequent to the execution of the deed of trust. This case has never been overruled, and we see no reason why it should be disturbed now. * The legal effect of the whole instrument is to give the settlor the benefits of the property during life, and the disposition of it after death, so that she enjoys all the benefits of ownership and shares none of the burdens and at the same time the property is beyond the reach of creditors." In Holbrook's Estate, 213 Pa. 93, 62 Atl. It is against public policy to permit the defendant under cover of a trust in which she reserves to herself the benefits of the property during life and the disposition of it after death, to enjoy all the benefits of ownership and share none of the burdens, while at the same time the property is beyond the reach of creditors. Nolan v. Nolan, supra. The court made absolute plaintiff's rule for judgment for want of sufficient affidavit Argued before BROWN, C. J., and MESTREZAT, ELKIN, STEWART, and FRAZER, JJ. Ralph B. Evans and Frank P. Pritchard, both of Philadelphia, for appellant. Albert W. Shields, of Philadelphia, for appellee. PER CURIAM. This judgment is affirmed, on the clear opinion of the learned president 368, 2 L. R. A. (N. S.) 545, 110 Am. St. Rep. judge of the court below, making absolute 537, 5 Ann. Cas. 137, Mr. Chief Justice Mitchell the rule for it on the answers of the garstated that "a man may not settle his own prop-nishees to the interrogatories filed by the erty on himself so as to keep it out of the reach plaintiff. of his creditors, for that would lead directly to fraud." The established law was not modified by Egbert v. De Solms, 218 Pa. 207, 67 Atl. 212. In that case the settlors, who were husband and wife, created a trust, reserving to themselves the income for life, with the remainder to their children, or the issue of a child deceased. There was a power of appointment by will, but limited to determining in what shares or proportions those in remainder should take. In that case the settlors divested themselves of all right of ownership in and control over the property, and the estate in remainder vested in the children, and there were children living when the trust was created. It was said by the court: "Except as against existing creditors, or those in specific contemplation in the immedi ate future, the defendant and his wife, the settlors in the deed of trust, could have conveyed a present absolute estate to their children, and a fortiori they could convey an estate in remainder. This is what they did, and the remainder vested in the children at once. * The power of appointment by the settlors in regard to the respective shares in which the children should take did not in any way diminish the estate of the remaindermen, or reserve to the settlors any interest which would invalidate the trust in favor of their creditors." It was said in the opinion of the lower court, which was affirmed: "The children, therefore, have a vested interest in the whole estate, which is to take effect in possession, as to one portion of it upon the death of the mother, as to the * Judgment affirmed. [Ed. Note. For other cases, see Carriers, Cent. Dig. § 973; Dec. Dig. 238. For other definitions, see Words and Phrases, First and Second Series, Passenger.] Appeal from Court of Common Pleas, Philadelphia County. Action by Elderbrando Schifalacqua, by his next friend, Guelfo Perfetti, against the Atlantic City Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed. Argued before BROWN, C. J., and MESTREZAT, ELKIN, and STEWART, JJ. Wm. Clarke Mason, of Philadelphia, for appellant. Frederick J. Knaus and J. Washington Logue, both of Philadelphia, for appellee. STEWART, J. Except as plaintiff was a passenger on a train of the defendant company when he was injured, he was in no position to complain of negligence on part of the defendant, either in failure to maintain its cars in safe condition or in the operation of its trains, and refer his injury to such negligence to supply a basis of recovery of damages. If not a passenger, or intending passenger, the company owed him no duty other than to avoid inflicting willful injury. the statement of claim filed it is not alleged that plaintiff was a passenger. The nearest approach to it is that he was injured"while lawfully attempting to board a car of defendant company, under its exclusive custody and control, for the purpose of being transported from Winslow Junction, N. J., upon the road of the defendant company to a point at or near Folsom, N. J." In He might have been lawfully attempting to board the car, and yet not a passenger, or intending passenger. The testimony of the plaintiff is more to the point, and leaves no room for any presumption to operate. When asked what kind of a train it was that he attempted to board, his answer was: “An engine with three cars; passenger, because there were seats inside." The fact as unmistakably disclosed in his later testimony, and the testimony of every witness in the case, is that it was exclusively a workmen's train making a special trip that Sunday morning to carry laborers employed by the company in its construction work to their appointed place of work at Folsom. Not only does it not appear in the evidence offered in support of plaintiff's claim that he was in the company's employ at the time in any capacity whatever, but it does clearly appear that he attempted to board the train without invitation from anybody in authority, without ticket or leave, with a view of going to Folsom and there securing, if he could, employment from the defendant. The train carried many laborers, and when it reached an intermediate point, where the workmen's tools were stored, it stopped, and all the men, as directed, left the train for the purpose of supplying themselves with the necessary tools, plaintiff among them, but without directions other than that addressed generally to the workmen aboard. The plaintiff got no tools, for the reason, as he said, that those in advance of him exhausted the supply, and he was told by some one that he could get his when he reached the place of work. His narrative then proceeds: "When all, some 25 or 30 of them, had returned to the station platform, some one, I presume was a boss, was near the station, the train was not moving yet, started shaking his hand. At that time I could not understand English at all. He was shaking his hands and hallooing orders to get the train, because he said the train was late. Then we went to the step; a whole bunch went to the step. Somebody else was on the step before me, between the car and the step. Then I went in myself." It was while attempting to board the car at this point that the accident happened. He testified that he got upon the lower step with both feet; that he could not get into the car, "because somebody was between the step and the door of the car, because there were so many people"; that he was holding to the handlebar when the train started and the movement of the car threw him back, with the result that the handlebar came off and he went down between the platform and the wheels. The plaintiff in his testimony unwarrantably appropriates to himself the direction of some one he presumes was a boss, which was addressed to the body of workmen, that they should get the train because it was late. He nowhere says that he had been employed by the defendant company, or that he was invited by any one in authority to ride on the train, except as he included himself in the direction given to the work men generally, or that his presence in the car as an unemployed person was known to any one in charge of the train. The uncontradicted testimony of defendant's witnesses was that he was not an employed laborer; that no one in authority had given him leave to ride on the train or knowingly suffered him to enter the car. On this state of the evidence it was submitted to the jury to determine whether or not the plaintiff was a passenger, with the following instruction: "We say to you that the first question you wil solve is: Was the plaintiff a passenger, or intended passenger, either by permission or invitaIf he was not, that would be the end of the case, tion of the defendant company to its employés? and your verdict would have to be for the defendant. * If this was merely a train to carry workmen, then he would have no right, case, to board it, unless he was invited or perunder the pleadings and the evidence in this mitted to do so; and if he was not invited or permitted to do so by the employés in control of the train, he would have no right to enter upon it, and if he did so, and was injured, it would be the result of his own fault." That the train was exclusively a train to carry workmen was a fact not in dispute; contradicted evidence, and there is nothing in it was conclusively shown by defendant's unthe evidence offered by plaintiff to show that it was anything else. That either invitation in charge of the train to enter the car noor permission was given plaintiff by any one where appears in the evidence for the plaintiff, except as the general direction given by a presumed boss above referred to could be so construed; while, on the other hand, the uncontradicted evidence adduced by the defendant is to the effect that neither invitation nor permission was given by any employé. It is not a little significant that in his charge submitting the question to the jury the learned trial judge indicates nothing in the evidence even remotely tending to show that plaintiff was a passenger; and nothing is called to the attention and consideration of the had taken his foot off the treadle, and the punch catching his hand. The court left to the jury the question as to whether plaintiff was negligently instructed by the defendant. The court charged the jury, in part, as follows: jury in that connection. The fact is that the, the waste; the machine repeating after he case was barren of such evidence, and therefore it was not a question for the jury. The trial judge was correct in holding that, except as plaintiff was a passenger when injured, there could be no recovery; but on the state of the evidence he should have held as matter of law that he was not a passenger, and directed a verdict for the defendant. Error in this regard is complained of in the first assignment of error, and this assignment is sustained. It is unnecessary to go farther into the case. We may add, however, that, even were plaintiff to be regarded as a passenger, his case comes far short of showing negligence on part of the defendant company. mere breaking of the handle rail, which he claims was the proximate cause of his injury, would not of itself, unexplained, establish negligence. The "We can easily imagine a case where it might have been necessary for the jury to consider ed, and whether or not it was apt to slip the whether or not this machine ought to be guardcog, or to suddenly come down when under the operation of the machine that would not happen; but we eliminated those things for this reason: That under the theory of the plaintiff himself, in the trial of the case, the issue was narrowed, and also under the theory of the defendant it must necessarily have been narrowed. It is immaterial how this accident happened, as far as the punch coming down is concerned, whether it happened because the cog slipped, or whether it happened by the plaintiff unconsciously putting his foot upon the treadle, unless, if he put his foot upon the treadle, he did so because he was carelessly operating the machine. We have eliminated all these other questions, for the reason that the plaintiff, in his testimony, stated that he had, previously to Mr. Stern's instruction that morning, removed this waste by a stick or an iron rod, and, if he had continued in that, then this accident could not have happened to him, because he would not May 17, have had his hand under the machine." The judgment, for the reasons stated, is reversed, and judgment is now entered for the defendant. (249 Pa. 553) TASCHNER et al. v. STERN. (Supreme Court of Pennsylvania. 1915.) MASTER AND SERVANT 291 INJURIES TO Appeal from Court of Common Pleas, Philadelphia County. Argued before BROWN, C. J., and MESTREZAT, ELKIN, STEWART, and FRAZER, JJ. John J. McDevitt, Jr., and Samuel G. Stem, both of Philadelphia, for appellants. John H. Fow and John H. Schwarz, both of Philadelphia, for appellee. PER CURIAM. Nothing is to be found in the six assignments of error calling for a reversal of the judgment, and it is affirmed on that portion of the charge of the learned trial judge which is the subject of the first. Judgment affirmed. FICE. DALLAS et al. May 26, 1915.) ELECTIONS 171-BALLOTS-TERMS OF OFWhere councilmen were to be elected for two and four year terms, an election is void where the ballots designated the term of all the candidates as four years. Action by Jacob Taschner, by next friend, and Rebecca Taschner, as administratrix, against Samuel Stern, trading as the Stern Manufacturing Company. From a judgment for defendant, plaintiffs appeal. Affirmed. Jacob Taschner, the plaintiff, had several (249 Pa. 560) fingers cut off while operating a punch press COMMONWEALTH ex rel. PALMER et al. v. in defendant's machine shop, where he had been employed for about a year and a half before the accident. At the time of the acci- (Supreme Court of Pennsylvania. dent plaintiff was 17 years old. He had been taught to operate the press, and had worked on it during the period of his employment. The press was operated by a foot treadle; the machine stopping when the foot was taken off the treadle. The use of the maIchine was for the punching of tin. Sometimes the piece cut out stayed in the hole, and when this occurred the defendant's instructions were that the operator should use a stick or rod to push it through. Plaintiff testified that on the day of the accident he had been instructed to use his hand, instead of the rod, as the latter nicked and spoiled the die. Defendant denied this instruction. The plaintiff testified that the accident oc- Argued before BROWN, C. J., and POTcurred while using his hand to push through | TER, ELKIN, STEWART, and FRAZER, JJ. [Ed. Note. For other cases, see Elections, Cent. Dig. § 145; Dec. Dig. 171.] Appeal from Court of Common Pleas, Chester County. Quo warranto by the Commonwealth, on the relation of J. Monroe Palmer and others, against Robert E. Dallas and others. From a judgment for respondents, relators appeal. Reversed. |