Smith v. Simmons.

then as the second question, was the defendant chargeable with the negligence of his contractor who had charge of the work? It is certainly true that if the premise assumed by the court below be correct the conclusion adopted by it follows as a matter of course. If the ditch dug for and at the instance of Dr. Smith was a public nuisance, then he and all engaged in sinking it were responsible for all damages resulting from it, and the doctrine of respondeat superior is out of the case. But we do not think it was per se a nuisance; such a work that the borough council had no power to permit. This ditch was dug for the purpose of laying a pipe for the conveyance of water from a spring to one of the defendant's houses on Willow street. Water is one of those prime necessaries without which people cannot live, and the public streets of towns and cities have, from time immemorial, been used as a means for its production or conveyance. Formerly it was very common for the citizens of the various municipalities to sink wells for this purpose on the public thoroughfares, and this, as was said by Chief Justice GIBSON, in Barter v. Commonwealth, 3 P. & W. 253, was by sufferance and in subjection to the corporate franchise. In these days, when water-works are common to all the larger towns, pipes are laid in the streets from which the water supply is drawn both for public and private uses, and although the right thus to lay pipes is usually accorded to a corporation, it by no means follows that it might not be done by private persons acting under municipal authority. Necessity, as was held in the case of the Commonwealth v. Passmore, 1 S. & R. 217, justifies many actions which would otherwise be nuisances. No one has the right to throw wood or stones in the street at his pleasure, nevertheless, as building is necessary, building materials may be laid therein for a reasonable time and in a convenient manner. So may a merchant occupy the street with his goods; in like manner may the common highways be temporarily opened for the purpose of building vaults under them, or under like regulations, private drains may be connected with the common sewers or gutters, or houses and other buildings with the streets, by-alleys, door-steps, and the like. By such things as these and many others, which are justified by necessity or custom, may public highways be occupied temporarily or permanently, and it would be strange indeed if in the face of all this array of precedents a private citizen, acting under municipal license, could not, without committing a public nuisance, lay a

Smith v. Simmons.

water-pipe along a street to his house. Such strictness as this would, in some of our county villages, deprive the inhabitants of their water supply altogether, and would, in many other instances seriously interfere with the business and comfort of our people.

From considerations of this kind we are compelled to dissent from the ruling of the court below on this question of nuisance and to hold, on the contrary, that the digging of the trench, complained of in this case, under the license of the borough council, was not such an act as of itself rendered the parties engaged in it guilty of a public wrong.

Having arrived at this conclusion, the question that next presents itself is that involving the responsibility of the defendant. If however the testimony of Jonas Florence, the contractor, is to be believed, Dr. Smith was not his responsible superior. Florence undertook the whole job for the compensation of $25, and the defendant had nothing to do except furnish the pipe and the box in which it was to be inclosed. With Florence, in the execution

of this contract, he could no more interfere than he could about a job in which he had no interest. He might advise but the contractor could receive or reject that advice as he saw fit; he might put a fence around the ditch whilst in process of construction, and Florence might treat it as an obstruction and remove it. In other words, Dr. Smith could not control the execution of the contract. He was entitled to a finished job, but it was not his business to see to or regulate the manner of its doing. The case is evidently governed by Harrison v. Collins, 86 Penn. St. 153; s. c., 27 Am. Rep. 699; wherein it is said, by Mr. Justice MERCUR: "If one renders service, in the course of an occupation, representing the will of the employer only as to the result of the work and not as to the means by which it is accomplished, it is an independent employment." But certainly, in the case under consideration, Florence was the subordinate of the defendant in nothing but the design, whilst in every thing which pertained to the execution of the work he was the chief and only director and executor, and it hence follows that for his negligence the court ought not to have held the defendant responsible.

We therefore think, without particularizing as to the assignments of error, the court should have instructed the jury that if they believed the uncontradicted evidence on the part of the defendant,

Thompson v. Allen.

as to the character of his contract with Florence, the plaintiffs were not entitled to their verdict.

The judgment of the court below is reversed and a new venire awarded.

TRUNKEY, J., dissented.

Judgment reversed.

THOMPSON V. ALLEN.

(103 Penn. St. 44.)

Marriage-conveyance bg husband to wife.

A voluntary deed of land direct from husband to wife, made in good faith, the husband not being in debt, will be sustained as against a subsequent creditor of the husband, although it was all the land he owned and a large proportion of all his property.*

MERCUR, C. J. It is true a deed from a husband directly to his wife is a nullity at common law. Under modern legislation and the application of equitable principles, a wide departure has been made from the common law, in respect to the ability of a wife to acquire and hold property. Her right of acquisition and power of control is not restricted to property obtained from one not her husband. When not in fraud of creditors of the husband a conveyance from him directly to his wife may be sustained on equitable principles: Coates v. Gerlach, 44 Penn. St. 43; Townsend v. Maynard, 45 id. 198; Pennsylvania Salt Manufacturing Co. v. Neel, 54 id. 9; Rose v. Latshaw, 90 id. 238.

A husband may not only convey directly to his wife for a valuable consideration, but he may also convey to her as a gift when not prejudicial to his creditors.

* See Warlick v. White (86 N. C. 139), 41 Am. Rep. 453.

Muldoon v. Rickey.

The main effort here appears to have been to sustain the conveyance as a sale and purchase for a valuable consideration. Conceding that the subsequent failure of consideration which led to the conveyance weakens this branch of the defense, yet if the conveyance can be sustained without the aid of the original transaction, it may be valid as a gift.

This conveyance is attacked by one who was not a creditor of the husband when it was made. The evidence does not show that he was indebted to any person at that time. The debt under which the plaintiff claims was contracted more than a year thereafter. When the deed was made he had no creditor to defraud. The jury have found that it was made in good faith with no intention to hinder, delay or defraud future creditors, on debts arising from hazardous undertakings. Under these facts he had a right to convey the land as a gift to his wife. She took and may hold it against the claims of all creditors who were neither defrauded nor intended to be defrauded by the conveyance. It matters not that this land was all the real estate he owned, and a large proportion in value of all his property. The conveyance being under seal implies consideration. The assertion of title by the wife against the subsequent creditors of her husband is no evidence of fraud in her prior acquisition of the property. The case was well tried and we discover no error in the record.

Judgment affirmed.

MULDOON V. RICKEY.

(103 Penn. St. 110.)

Malicious prosecution—does not lie without arrest of person or detention of

property.

SUFFICIENTLY reported, 44 Am. Rep. 346.

Desmond's Appeal.

A

DESMOND'S APPEAL,

103 Penn St. 126.).

Trade-mark-“Samaritan."

"Samaritan" is not a valid trade-mark on medicines.

CTION for infringement of trade-mark. The opinion states the point. The bill was dismissed below.*

Pierce, Archer and R. P. Dechert, for appellant.

Rowland, Evans and R. L. Ashurst, for appellee.

PER CURIAM - The original bill declares "that the said medicines have been and are distinguished by the names of 'Samaritan's Gift and 'Samaritan's Root and Herb Juices,' and that the said names are the trade-marks of the same together with certain labels and wrappers hereto annexed marked 'Exhibit A,' and by said trademarks the same are distinguished from all other compound medicines."

It does not aver an imitation or similarity in the appearance of the labels and wrappers. An examination of the two shows they are quite dissimilar in names and appearance. It is true each has the word "Samaritan," but in such different form and combination of words as to preclude one medicine being taken for the other. We do not think the amended bill removes the difficulty of the appellant. The appropriation of the word "Samaritan" in one combination of words does not prevent its being used in all other combinations. Decree affirmed and appeal dismissed at the costs of the appellant. Decree affirmed.

*See Eggers v. Hink, ante, 96.