Michael J. and Elizabeth Phelan v. Armstrong Cork Co.

the statute of limitations prevents A. B. Rote & Company from bringing a new suit to recover.

Section 319 of the Workmen's Compensation Law of June 2, 1915, P. L. 736, provides that "Where a third person is liable to the employee or the dependents for the injury or death, the employer shall be subrogated to the right of the employee or the dependents against such third person, but only to the extent of the compensation payable under this article by the employer. Any recovery against such third person in excess of the compensation theretofore paid by the employer shall be paid forthwith to the employee or to the dependents, and shall be treated as an advance payment by the employer on account of any future instalments of compensation."

There is nothing in this section that expressly requires an employer who paid compensation under the Workmen's Compensation Law to be made a party to the suit, but it was decided in Kinney v. P. & R. R. R., 45 C. C. 703, that an employer who has paid a compensation under the Workmen's Compensation Law must be made a party plaintiff on the record; otherwise the dependent who brought suit, in case a verdict was obtained, would entirely control that verdict, and the employer might thus be deprived of his right to obtain from such dependent what the section of the act quoted above declares him to be entitled to. Without expressing our opinion as to the necessity of A. B. Rote & Company being made a party to the record in this case, we see no reason why it should not be done.

The Act of May 4, 1852, Section 2, P. L. 574, authorizes amendments in pending suits by changing or adding names of plaintiffs or defendants. An amendment will not be allowed where it will work prejudice to the opposite party: Riley v. Prudential Ins. Co., 12 Sup. 561; Sener v. McCormick, 15 Sup. 588. Where the statute of limitations has run, an amendment would prejudice the defendant that would permit the plaintiff to make certain changes in or additions to the name in which suit was brought. Thus where he sues in a representative capacity it has been held that he cannot have the caption of a suit amended by striking out the representative capacity and proceed against the defendant as an individual, for the reason that it would be rendering the defendant liable for something, the recovery of which has been barred by the statute: Garman v. Glass, 197 Pa. 101; Girardi v. Lumber Co., 232 Pa. 1; Bender v. Penfield, 235 Pa. 58. Where the holder of certificates against a township brought suit to recover in his own name, it has been held that he could not amend, by adding the name of the person to whom they were made payable as use plaintiff, after the statute had barred the use plaintiff in his right to recover, as this would be reviving an action which had been barred by the statute, and would thus prejudice the defendant: Comrey v. East Union Twp., 202 Pa. 442.

The accident to plaintiffs' son occurred September 1, 1916. This suit was brought July 2, 1917, and it is now too late for anyone to be added as a party to the record whose claim is barred by the statute of limitations. It would now be too late for the name of A. B. Rote & Company to be added to that of the plaintiffs, to enable them to recover

Michael J. and Elizabeth Phelan v. Armstrong Cork Co.

any claim they had or might have had growing out of the accident to plaintiffs' son against the defendant, as such claim is barred by the statute of limitations. But that is not the purpose of adding their name. It is asked to be done only to protect their right as against the plaintiffs. The plaintiffs have a common-law action against the defendant for negligently causing the death of their son. The 319th Section of the Act of 1915 did not change this, nor give A. B. Rote & Company any cause of action against the defendant. Its provisions are only to prevent persons, in the same position as the plaintiffs are, from recovering twice for the same injury. Having obtained from A. B. Rote & Company compensation for the death of their son, under that Act of Assembly they must, if they recover damages from the defendant, pay back to A. B. Rote & Company, or hold in trust for them, so much of the verdict as equals the amount thus received by them. It is a matter between the plaintiffs and A. B. Rote & Company, with which the defendant is not concerned, as it does not change its liability in any way.

The defendant is liable, if negligent, not to A. B. Rote, but to the plaintiffs, and if they chose to protect A. B. Rote & Company by putting on the record that they hold that portion of their verdict for their use, it does not prejudice the defendant, as it does not increase its liability. We are satisfied that without this addition to the record, the plaintiffs, if they recover a verdict, would hold, as trustees for A. B. Rote & Company, that amount of the verdict, so that putting that fact upon the record certainly does not affect the defendant adversely. The rule to amend the statement and pleadings as requested is made absolute, and the amendment is allowed.

Rule made absolute.

Court of Common Pleas of Lancaster County

Kline v. Mowery.

Magistrate's jurisdiction-Money won and paid for bet-Act of April

22, 1794.

An alderman has no jurisdiction to collect money won through a bet.

An alderman has jurisdiction under the Act of April 22, 1794, 3 Sm. L. 181, Section 9, in an action to recover money lost by the plaintiff and paid to the defendant as the result of a bet, but only when the suit is brought within ten days of the payment, and this must appear on the record.

A magistrate's record should show that he had jurisdiction of the parties and of the subject matter, and it is not sufficient to say that the claim is "for moneys. in the possession of the defendant belonging to the plaintiff."

Kline v. Mowery.

Burt. R. Glidden, for certiorari.

December 27, 1919. Opinion by HASSLER, J.

One of the exceptions to the Alderman's record is that the magistrate had no jurisdiction of the cause of action.

The transcript shows that plaintiff claims Five Dollars "for moneys in the possession of the defendant belonging to plaintiff." It is not clear from this that the alderman had jurisdiction of the subject matter of the suit, as it does not show what the transaction between the parties was, that is, how the money got in the possession of the defendant and whether the plaintiff was entitled to recover it.

The records should show that the alderman had jurisdiction of the parties and of the subject matter: Cook v. Ferguson, 17 L. L. R. 239; Holden v. McCabe, 21 C. C. 41. If there is any question of the justice's jurisdiction of the subject matter of the suit, evidence dehors, the record is admissible, and will be considered by the Court on certiorari to show want of such jurisdiction: Burginhofen v. Martin, 3 Yeates 479; Parkes v. Diehm, 5 L. L. R. 243; Ringwalt v. Swayne, 13 L. L. R. 357; Lansford v. Lutz, 11 D. R. 411.

The depositions, taken in support of this exception, show that the money in question was in the defendant's possession as the result of a bet made more than ten days before the suit was brought. An alderman has no jurisdiction to collect any money won through a bet, as that is a gambling transaction, and it is against public policy to permit its recovery. If the money was lost by the plaintiff and paid to the defendant as the result of a bet, which appears from the depositions to have been the case, it can only be recovered within ten days of such payment under the Act of April 22, 1794, 3 Smith 181, Section 9, and this must appear on the record. The depositions show that it was paid more than ten days before bringing suit. In either of these events the alderman did not have jurisdiction of the subject matter of the suit, and the exception to his proceedings raising this question must be sustained. Exception sustained, and proceedings of the alderman set aside.

BOOK NOTICE.

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This pamphlet covers the law and practice under the Practice Act of 1915 with the decisions relating thereto reported down to November, 1919, with index and table of cases covering 70 pages.

The work is careful, elaborate and complete, including all decisions of the Supreme, Superior, Common Pleas and U. S. District Courts, and its value to the practicing lawyer is obvious. The price is $1.50 postpaid.

Court of Quarter Sessions of Lancaster County

Commonwealth v. Stambaugh.

Criminal libel-Malice-Privilege-Defective verdict-Correction ofCosts-Poll of jury.

Where in a criminal trial for libel, the jury brought in a verdict of guilty but dividing the costs between the prosecutor and defendant, and the trial judge ordered the disposition of the costs stricken off and took the verdict of guilty, all the jurors assenting and none objecting, after instructing them that if their verdict was guilty they could not pass on the costs, a new trial should not be allowed because the court took this action and refused the request of the defendant's counsel that the jury be allowed to retire and reconsider the verdict, and also refused the defendant's request after the verdict had been recorded that the jury be polled.

A motion that the jury be polled cannot be made after verdict has been announced in court, affirmed by the jury collectively and recorded on the minutes. The malice involved in the offense of libel is not necessarily actual personal ill-will, but if the publication is wilful, defamatory and unprivileged, an inference of malice arises.

A published charge of treachery and hypocrisy against the editor of a rival trade-union paper, for the evident primary purpose of obtaining subscribers for the defendant's paper, is only at best in a sense semi-privileged, and if any privilege existed it was for the jury to find whether it was abused and thereby lost.

Libel. Verdict of guilty.

sions, 1918, No. 57.

Rule for a new trial. September Ses

John M. Groff and John A. Coyle, for rule.

Bernard J. Myers, John E. Malone and S. V. Hosterman, Asst. Dist. Atty., contra.

December 27, 1919. Opinion by LANDIS, P. J.

The defendant in this case was charged with criminal libel, and the jury found him guilty in manner and form as he stood indicted. Ten reasons have been filed why a new trial should be granted, and in their consideration we will first take up the seventh, eighth and ninth reasons, which relate to the manner in which the verdict was rendered.

The jury came into the Court with the following entry written upon the indictment: "Stambaugh guilty-divide Cost between Prosecutor & Defendant." Thereupon the Court said: "Gentlemen of the Jury, I told you, in my Charge, that, if you found the defendant guilty, you had nothing to do with the question of costs." Mr. Coyle, attorney for the defendant, then said: "I ask that the jury be allowed to retire and reconsider that question." To that the Court replied: "If there is any misunderstanding as to what they mean, of course they may do it." Mr. Coyle then said: "I ask that the jury be allowed to retire and reconsider that question," and Mr. Malone replied: "If they found the defendant guilty, the rest is surplusage." The Court said: "They do not have to retire, if that is their verdict; but they cannot pass on the costs; that part of the verdict will be stricken off." Mr. Coyle again insisted that they "be allowed to retire, with that additional instruction, that they cannot find him guilty and yet relieve him of the costs." The Court then said: "We will take their verdict, if they say

VOL. XXXVII, No. 18

that is their verdict.

Commonwealth v. Stambaugh.

If their verdict is one of guilty, that we will take." The Court then said to the jury: "If there is any objection on the part of any of the jury to that, that would be another matter; but there does not seem to be any. That is their verdict. Take the verdict, except you have nothing to do with the question of costs; strike that off." Mr. Coyle then said: "Will your Honor give the jury the opportunity of saying whether they now want their verdict recorded, when they are told they cannot find him guilty and impose the costs?", to which the Court replied: "They will be asked what their verdict is.” Thereupon the Clerk said: "Gentlemen of the Jury, in the issue joined between the Commonwealth of Pennsylvania and J. Cletus Stambaugh, how say you? Is the defendant guilty or not guilty?", to which all the jurymen replied: "Guilty." Thereupon the Clerk said: "Gentlemen of the Jury, hearken to your verdict as the Court hath it recorded: In this issue joined between the Commonwealth of Pennsylvania and J. Cletus Stambaugh, you say you find the defendant guilty as indicted, and so say you all?", to which the jurymen replied: "Yes, sir." It cannot be contended that the jury could find the defendant guilty and yet divide the costs between the parties, and it is manifest, from what took place, that every one of them had an opportunity to dissent if the finding of guilty was not a true verdict. The matter was plainly stated to the jury. It was unnecessary, under the circumstances, for them to retire, for there was no dispute as to what their verdict was; and it seems to me that the defendant has no ground of complaint in this regard.

After the verdict had been recorded, Mr Coyle asked that the jury be polled, to which the Court answered: "I do not think it is necessary in a case like this." This action of the Court is the ground alleged in the tenth reason. In Rottmund v. Pennsylvania Railroad Company,. 225 Pa. 410, a similar proposition came before the Court. There, however, after the jury had been discharged from further consideration of the case, they were re-assembled, for the purpose of making the written verdict conform to the verdict which they did actually render an hour previous. It was held that it was too late for the defendant to move for a poll of the jury. Mr. Justice Mestrezat, delivering the opinion of the Court, said: "The motion cannot be made after the verdict has been announced in Court, affirmed by the jury collectively, and recorded on the minutes: Commonwealth v. Schmous, 162 Pa. 326; Scott v. Scott, 110 Pa. 387; Malone v. State, 49 Ga. 210; 22 Ency.. of Pl. & Pr. 935."

The first reason, which is that the Court erred in refusing the first point, needs no discussion. That point asked for binding instructions. in favor of the defendant. Under the law, as I view it, such instructions could not have been given. The reason is, therefore, overruled.

The second point asked us to instruct the jury that the Commonwealth must show express malice before there can be a conviction of the defendant. The undisputed facts, as given to the jury, were: That there was a national organization of rural letter-carriers, with a constitution adopted for its government. W. D. Brown was an honorary