Court of Common Pleas of Lancaster County

Annie Katherine Oster v. The Brotherhood of Locomotive Firemen and Engineers (No. 2).

Unincorporated benevolent societies Suit against-Insurance Commissioner Waiver of time of service. - Act of June 25, 1895, P. L. 280, and June 20, 1919, P. L. 510.

In an action brought in Lancaster County against an unincorporated beneficial society having no office or property in that county but doing business in Pennsylvania through its grand lodge in Cleveland, Ohio, of which its various subordinate lodges are parts, the writ of summons is improperly served on an officer of a subordinate lodge in Philadelphia but may be served upon an officer of a subordinate lodge in Lancaster County.

The provision of the Act of June 25, 1895, P. L. 280, that when process is served on the Insurance Commissioner it shall be served thirty days before the return day, is for the benefit of the person served and the acceptance of service is a waiver thereof.

Rule to set aside return of service.

John A. Coyle, for rule.

B. F. Davis, contra.

April 17, 1920. Opinion by LANDIS, P. J.

On January 28, 1920, a writ of plurice summons was issued in the above case, and on January 31, 1920, the Sheriff made the following

return:

"Served the within writ on within named defendant by handing a true and attested copy thereof to George L. Bittner, Financial Secretary and Treasurer of Quaker City Lodge, No. 869, Philadelphia, Brotherhood of Locomotive Firemen and Enginemen."

February 5, 1920. Served the within writ on within named defendants by handing a true and attested copy thereof to John Myers, Financial Secretary of Lodge No. 252, Brotherhood of Locomotive Firemen and Enginemen, Columbia, Pa."

There is also an acceptance of service, on January 28, 1920, by Thomas B. Donaldson, Insurance Commissioner, for the Brotherhood of Locomotive Firemen and Enginemen of Cleveland, Ohio. Thereupon a rule was, on February 28, 1920, granted to set aside the service.

The Brotherhood of Locomotive Firemen and Enginemen is an unincorporated association, doing business in the State of Pennsylvania. and elsewhere, having its principal place of business at Cleveland, Ohio. It is divided into various lodges as parts of said association, the Grand Lodge of which is the responsible party in this action. The Grand Lodge transacts no business and maintains no office, depot nor place of business in the County of Lancaster, and has no property in that county. The cause of action did not arise in the County of Lancaster.

VOL. XXXVII, No. 52

Annie Katherine Oster v. The Brotherhood of Locomotive Firemen and Engineers (No. 2).

case.

It will be observed that there were three methods of service in this As to the service on George L. Bittner, Financial Secretary and Treasurer of Quaker City Lodge No. 869, Philadelphia, Brotherhood of Locomotive Firemen and Enginemen, it was held by this Court (see 37 LANC. LAW REVIEW, p. 63) that, "in an action brought in Lancaster County against an unincorporated beneficial society, having no office or agent in that county, the writ is improperly served, and the service will be set aside, where it was served in Lancaster on a resident of Philadelphia who was an officer of a subordinate lodge in Philadelphia but not of the Grand Lodge, which pays all claims, and transacts the business in Cleveland, Ohio, the subordinate lodges having no bylaws and being merely parts of the Grand Lodge." It follows that that part of the service was improper, and especially so as it does not now appear whether the Sheriff served this writ in Lancaster or Philadelphia. He certainly had no right to serve it beyond his jurisdiction.

The next question is, whether or not the service on John Myers, Financial Secretary of Lodge No. 252, Brotherhood of Locomotive Firemen and Enginemen, Columbia, Pa., is good.

By the Act of June 20, 1919, P. L. 510, it is provided: "That every foreign fraternal, beneficial or relief society, company or association doing business in this state or collecting dues or premiums in any county within this state, where a cause of action or suit may arise, can and may be served by any legal process by handing a true and attested copy thereof to any officer or officers of such fraternal, beneficial or relief society, company or association within said county, or by leaving such copy at the lodge or place of meeting or office of any such society, company or association, with any person for the time being in charge thereof."

The defendants' petition admits that its association is doing business in the State of Pennsylvania. It also admits that it is divided into various lodges or parts of said association. It would, therefore, appear that Lodge No. 52, at Columbia, Pennsylvania, is a member of the organization. The Act as quoted provides that the writ may be served "by handing a true and attested copy thereof to any officer or officers of such fraternal, beneficial or relief society, company or association within said county," and the return shows that the writ was served on John Myers, the financial secretary of said lodge. It is of no importance, as it seems to me, when the cause of action arose, provided the official was a proper party upon whom to make service when the writ was actually served.

The acceptance of service by the Insurance Commissioner need not be discussed. It is true that, under the Act of June 25, 1895, Section 1, P. L. 280, there is a provision that the process shall be served at least thirty days prior to the return of the same; but I take it that this provision was for the benefit of the person upon whom the writ was served, and that the acceptance of the service was a waiver of it. I am of the opinion that this rule should be discharged. Rule discharged.

Court of Common Pleas of Lancaster County

Schoenberger v. Wolf.

Automobiles-Right-angled collision — Damages - Promise to pay— Jurisdiction of magistrate.

In an action on the promise of the defendant to pay the cost of repairs to plaintiff's automobile after a right-angled collision with the car of the defendant who drove out of a cross street on the wrong side, the defendant claimed that he had promised only to pay for repairs and the plaintiff could have had his radiator repaired but instead put in a new radiator.

Held, that the case was properly submitted to the jury on the questions of whether the defendant was at fault, what promise he made and what repairs were necessary, and their verdict for the entire claim should stand.

This action was properly brought before a magistrate.

Rule for a new trial.

February Term, 1919, No. 64.

B. F. Davis, for defendant and rule.

B. C. Atlee and H. M. Houser, contra.

April 17, 1920. Opinion by LANDIS, P. J.

On November 25, 1918, the plaintiff, in company with his son, was running his automobile east along Main Street, in the Borough of Akron. When he got to South Eleventh Street, the defendant came up that street on the left-hand side, and, turning the corner, ran into the plaintiff's automobile and injured it. These facts, contradicted by the defendant, were submitted to the jury, and the verdict for the plaintiff now establishes them. The plaintiff testified that the defendant then said: "You take your machine right to the garage and have it repaired and send the bill right to me; I will pay everything; I had no business to turn over here, but I couldn't help myself; I was stunned." This the plaintiff did. A new radiator was put in the automobile, at a cost of $65.00, and some other necessary items, as he claimed, were done, so that the aggregate bill was $81.40. The defendant refused to pay this amount, because the old radiator could have been repaired for $25.00, and he only promised to pay for the repairs; and, therefore, the whole question was submitted to the jury to pass upon. The instructions to the jury were as follows:

"If you find that Wolf was at fault, then you must ascertain whether he made the promise, and what the promise was, not what Schoenberger paid out, but what Wolf at the time promised that he would pay. If he promised to pay only for the repairs of the plaintiff's machine, that is, what was necessary to put it in shape again, he cannot be held liable for a new radiator, unless that was absolutely necessary to put the machine in the shape it was in before. If the car could have been repaired without the new radiator, and the amount of the repairs did not come or would not have come to $81.40, but to a lesser amount,

Schoenberger v. Wolf.

then the verdict of the jury cannot be for more than the cost of the repairs, if that was according to the promise which he made. If Shoenberger's machine, according to the promise, was to be fixed as good as it was before the accident, then the plaintiff can recover the amount of the bill as thus made up, and if the jury find that it was necessary to do what was done in order to put the machine in that condition, and that a new radiator was necessary to accomplish that object, then the jury may find for the amount that is claimed by Shoenberger, including the new radiator, and also the other items, if they, too, were necessary. On the contrary, as I have said, if there was anything done here for Mr. Shoenberger's convenience, or because he wanted it, that went beyond the promise made by Wolf to put the machine in as good condition as it was, the jury, even if they find for the plaintiff, cannot find for an amount in excess of that sum."

It seems to me that this was a fair presentation of the case. If the jury found for the plaintiff in a larger sum than the defendant expected, that is the latter's misfortune, and he must bear the burden of such finding.

The suit was brought before an alderman and comes into this Court on appeal. It is claimed by the defendant that the alderman had no jurisdiction, and that the action should have been brought in the Court of Common Pleas for a tort. I do not think there is any proper foundation for this claim. A similar suggestion was advanced in Gingrich v. Sheaffer, 16 Sup. 299. There the defendant ordered one of plaintiff's men to hitch up his horse to plaintiff's wagon, as he desired to send the team to the country. The following day the wagon was returned in a damaged condition. Plaintiff thereupon interviewed the defendant, who instructed him to get the wagon fixed and he would pay for it. Suit was brought before an alderman, and it was urged that the alderman had no jurisdiction. However, this Court and the Superior Court on appeal decided that there was no merit in the contention. In Menhennet v. Davis, 71 Sup. 260, it was held that an agreement to pay all expenses resulting from an injury to the son of the plaintiff by defendant's servant, if plaintiff would cause defendant no trouble, is a definite contract, based upon a valid consideration; and that, where the plaintiff forbore to sue, and the evidence, if believed, would have entitled him to have recovered for the reasonable expenses incurred in caring for his son during his illness, and for his services, the plaintiff parted with a right which he had, in agreeing to such forbearance, and the case was for the jury as to the making of the contract and its terms.

I do not think there is any merit in the defendant's claims. The case was fairly heard and submitted to the jury, and their conclusion is final. For these reasons the rule for a new trial is discharged.

Rule discharged.

Court of Quacter Sessions of Lancaster County

Road in Upper Leacock Twp.

Road law-Powers of viewers.

One and the same set of viewers may vacate a portion of a township road, supply its place, widen a portion of the same and assess damages.

Exceptions to report of viewers. November Sessions, 1919, Min

ute 93.

John E. Malone, for exceptions.

M. G. Schaeffer, contra.

September 25, 1920. Opinion by LANDIS, P. J.

On November 29, 1919, a petition was presented by certain residents and taxpayers of Upper Leacock Township, representing that a public road, which is therein described, was then open and was one of the ancient roads of the township, and had been in general use as a highway from the point of beginning on the New Holland Turnpike between lands of the Mechanicsburg Lutheran Church on the west and Harry Myers on the east to Bushong's Mill on the Conestoga Creek, to a public road leading from Bushong's Mill southwardly to the New Holland Turnpike. No sufficient record of this highway appears in the Quarter Sessions Office of Lancaster County. It was stated in the petition that the said road was generally of the width of about twenty-eight feet, but in many places of much less width, too narrow for public convenience and for proper drainage and for properly reconstructing said road and portions thereof inconvenient for travel; that the southern portion of said road, extending from the beginning point theretofore mentioned, to wit, the New Holland Turnpike, northward a distance of fifteen hundred feet to stake No. 15, on plan or survey by the State Highway Department, should be widened; that portions of said highway have become useless, inconvenient and burdensome and should be vacated, and it was stated that one portion thereof began at a point in said highway eleven thousand three hundred feet south of the beginning point of said public road, being stake No. 113 on plan or survey of the State Highway Department, thence extended northwestwardly a distance of about three hundred and seventeen feet to a point in said public road, being north of coal shed on lands of Milton Bushong and seventeen feet west of stake No. 116 on said plan or survey, and the other portion began in said public road forty-two feet west of stake No. 114 on said survey, and thence extended in a northwesterly direction a distance of about three hundred feet to public road leading from Bushong's Mill northwardly to the New Holland Turnpike; that in lieu