Adjudication. O. C. of Lancaster County. June Term, 1913, No. 37. F. S. Groff, for accountant. John M. Heisey died intestate and insolvent March 7, 1913. Harmon L. Reich, whose tenant farmer he had been, died one month later. Considerable testimony has been offered in an effort to adjust their accounts. Both left memoranda or what they intended as books of original entry. It would not have been easy for them to have struck a correct balance. It was a hopeless task for their legal representatives. There are eight sheets of paper indiscriminately sewed together on which is written what was their lease. Our best effort has been made to state an account between them and it has resulted in a balance of $26.52 in favor of the estate of Harmon L. Reich, deceased. In arriving at this conclusion it was. found among other things that Reich had given Heisey a credit of $50.00 for preparing tobacco ground and also had properly charged him $74.00 for corn and oats. The paper offered in evidence by accountants as a receipt for this amount we find was intended as a bill or a notice to Heisey of a charge that would be made against him. The Reich estate is given the benefit also of $27.75, one-half of the baled hay. As against this it owes, as admitted, $12.60, the cost of baling. The claim which the decedent's estate had against Reich amounts to $100.13, made up of $20.80 for corn, $50.00 for preparing tobacco ground and $29.33 for special labor. A note for $1,050.00, under seal dated March 31, 1900, payable to the order of Amelia Heisey, one year after date, signed John M. Heisey and attested John S. Heisey, was proved. Subsequently it was discovered that it was not possible for this note to have been written in 1900 on the printed form which was used, because the form could not have come into existence before 1907. This is apparent, is not disputed and has been proved. A distinguishing mark on the margin of the form shows the business place of L. B. Herr, the stationer who published the form, to be "112-114 N. Queen St., Lancaster, Pa.," a site which was not occupied by him until about April, 1907. It is alleged that the note was forged, and it must be admitted that appearances are somewhat against its genuineness. A witness testified that he was present when it was executed, and he particularized as to the consideration for it. After the inconsistency on its face was pointed out he said he was mistaken, that he had not been present when this note was executed, but that he had been present in 1900 when a note for SI.050.00 was made by John M. Heisey, attested by John S. Heisey and given to Amelia Heisey, a note which as he remembered was as this one is. In adjusting money matters among members of a family, which it was said was the case here, it would not necessarily follow that it had been dishonestly done because a note had been antedated. Plenty of reasons might there be for so doing, and if there was no other obstacle an antedating might not be an unsurmountable barrier to the validity of this note. But the same witness tells us that the note which he knew was made on March 31, 1900, therefore, this one can not be it. Paradoxical as it may seem we are none the less of the opinion that while the note under consideration was not signed by John M. Heisey, it nevertheless is not a forgery. From this one might jump to the conclusion that John M. Heisey's name had been written by his father. John S. Heisey, may be at the son's request, at least with his approval, but such is not the case. John M. Heisey did not sign the note nor did John S. Heisey attest it, neither had anything to do with it, and so we find. But on our theory it was not a forgery because it was intended only as a substitute for a similar note which had been given in 1900, a substitute gotten up by one who was not malo animo, who did not intend by it to prejudice another's rights, but on the contrary to protect another's rights, but who had no authority to sub stitute a note and who, regardless of the intention, has been guilty of an unlawful act. While the evidence on which we found our theory is largely psychological, and as courts have not progressed sufficiently to risk judicial conduct on such evidence unsupported by dry, cold, material facts, the note before us is unavailable and the alternative is to throw it out. While there is evidence to show that John M. Heisey had owed his wife $1,050.00 and had liquidated by a note for that amount, the note is not here and there is no proof that it has been lost or destroyed. The legal inference, therefore, is that it had been paid or forgiven. If our theory" is right, what was intended as a help to the widow has been her undoing. Some of the exceptions were withdiawn. None of them has been sustained, and, therefore, all are dismissed. [Distribution is decreed accordingly.] Legal Miscellany. Pennsylvania Bar Association. SPECIAL NOTICE. TO THE MEMBERS OF THE PENNSYLVANIA BAR ASSOCIATION: .. You are respectfully advised that the annual meeting of the Association will be held at The Lawrence," Erie, Pennsylvania, on Tuesday, Wednesday and Thursday, June 30, July 1 and 2, 1914. Honorable Hampton L. Carson, of Philadelphia, will deliver the President's address on the afternoon of Tuesday, June 30, at 2 o'clock; subject, "The Evolution of the Independence of the Judiciary." Honorable George W. Wickersham, of New York, will deliver the annual honorary address the same evening at 8 o'clock; subject, "Government by Administrative Commission." On the afternoon and evening of Wednesday, July 1, the members of the Association and the members of their families accompanying them will be the guests of the Erie County Bar Association for an automobile ride around the city, or a sail on the bay and lake, followed by a white-fish dinner at the Kahkwa Club. A paper by Louis Richards, Esquire, of Reading, Pennsylvania, on "Jacob Rush and the Early Pennsylvania State Judiciary," followed by a paper by T. Elliott Patterson, Esquire, of Philadelphia, on "The Selection and Drawing of Jurors," will be read on Thursday morning, July 2, at 10 o'clock. The annual banquet will be held on Thursday, July 2, at 7: 30 p. m. Honorable Hampton L. Carson, the retiring President, will be the toastmaster. Responses to toasts are expected from his excellency the Governor of the Commonwealth of Pennsylvania; Honorable George W. Wickersham, New York City; Honorable Alonzo T. Searle, Honesdale, Pennsylvania; William M. Hargest, Esquire, Harrisburg, Pennsylvania, and others. Applications for reservation of rooms. should be promptly made to A. M. Milloy. Esquire, Secretary, Masonic Building, Erie, Pennsylvania. The Association earnestly requests the Judges of the counties whose court calendars" conflict with this annual meeting of the Association kindly to suspend their rules and arrange their court business so as to permit the attendance of the members at this annual meeting. The usual circular notices and reply postal-cards to members of the Association will be mailed later. WILLIAM H. STAAKE, Philadelphia, June 3, 1014. Another Place to Sleep. Let all who are weary take heart. Even the street railroad track has been adjudged as a place for repose. it has been held that the fact that a man falls asleep on car tracks in a drunken stupor will not necessarily bar a recovery. In Herrick . Washington Water Power Co., 134 Pacific Reporter, 934, the Supreme Court of Washington upheld a judgment in favor of the plaintiff for being run over by a street car while he was asleep on the defendant's car tracks. The evidence tended very strongly to show that his unconsciousness was due to drunkenness. The defense of contributory negligence was set up, but the court held: Negligence implies the power of volition at the time of the act or commission. So understood, it seems to us that the negligence resulting from drunkenness culminates with unconsciousness." It was held that the motorman was bound to keep a reasonable lookout, and if by such lookout and his best efforts he could have prevented the injury after seeing the danger, and did not do so, then the company should be held, on the doctrine of the last clear chance. In holding that this would apply, the court said in part: "It is a universal rule that voluntary drunkenness is no excuse for negligence, either primary or contributory. It is not even an excuse from crime.' Drunkenness, however, is not in itself negligence. It is merely an evidentiary fact tending to prove negligence."-Docket. The following exchange of courtesy was recently chronicled in a German paper's advertisements: The gentleman who found a brown purse, containing a sum of money, in the Blumenstrasse, is requested to forward it to the address of the loser, as he is recognized." A couple of days later appeared the response, which, although courteous, had an elusive air, to say the least: "The recognized gentleman who picked up a brown purse in the Blumenstrasse requests the loser to call at his house at a convenient day." -Everybody's Magazine. O. C. ADJUDICATIONS. By JUDGE SMITH: Thursday, May 19, 1914. Samuel H. Myers, Martic. Elizabeth Metzgar, E. Hempfield. Samuel S. Mull, W. Earl. Mary Wiley Stover, Conoy. Thursday, May 28, 1914. Samuel R. Landis, Manheim Twp. David Herney, East Hempfield. Martin Huber, West Lampeter. John Binkley, Mountville. Mary C. Mullen, Cecil Co., Md. Anna M. Strohm, Denver. Kate Driggers, West Lampeter. caster City, and it was there the diffi LANCASTER LAW REVIEW. culty, out of which this action arose, occurred. According to his statement, VOL. XXXI.] FRIDAY, JUNE 12, 1914. [No. 32 the conductor then came and asked him Common Pleas--Law Douglas v. Pennsylvania Railroad Co. A carrier may eject from its train a passenger who refuses to pay his fare or show his ticket, or who uses profane and offensive language when asked for it, although the use of such language only after the ejection would not justify the ejection if the passenger had previously given up a ticket to the conductor. Rule for a new trial. C. P. of Lancaster County. June Term, 1912, No. 19. 66 again for his ticket, and he says he re- 66 Now, the evidence on the part of the defendant, which is established by the verdict, contradicts this story in most material parts. The conductor, called as B. F. Davis, for plaintiff and rule. P. J. It seems to me that the chief trouble which the plaintiff is obliged to meet in this case is the verdict of the jury in favor of the defendant on the disputed facts. Unless error was committed by the Court in the presentation of the case to the jury, their verdict ought not to be disturbed. car, he saw a man resting on the window-sill at the rear end of the car, and he thought he was asleep. He testified that he tapped him on the shoulder and said, "Ticket, please," and the man said, "Won't give you no ticket"; that he then tapped him again and said, "Well, I will take your fare," and that the man replied, "Won't pay you no fare, damn you"; that he then said, "Why? What The plaintiff, who lives in Washington is the reason? You must have some Borough, this county, on May 22, 1912, reason. What is the trouble? Did I get left Philadelphia, where he was visiting, the ticket? Did you have a ticket? Exto return to his home. He testified that plain yourself. Give me some chance to he purchased a ticket for $2.01, from work on," and the man answered, “None Philadelphia 'to Columbia, and that he of your God-damned business." The left the former city in a train which de- conductor says he then said to him, parted at 2:35 p. m., and that he took" Here, you must cut that out; you must a seat in one of the cars, four seats back not use that kind of language in the car; on the north side. He stated that, shortly you are in a ladies' car," and that the after leaving Philadelphia he gave his man, in reply, said, "Then go away, you ticket to the conductor, who, in return, God-damned son-of-a-bitch, go away." placed in his hat a slip or check, and that, He and the brakeman then put the plainsoon after the train left Coatesville, the tiff off the train. The conductor testified conductor came around again and took that the reason he put the plaintiff off up the slip or check; that he remained was, "the boisterous and loud way that in the same seat until the train reached he acted on the train..." He also the Fair Grounds, a little west of Lan-testified that he had but one ticket from Philadelphia to Columbia, and he had gotten that from a drunken man in the smoking-car. This story was corroborated, in part, by George W. Startzman, Mrs. Fannie Rich and Miss Alfie Grove, passengers on the car. Here, then, was an issue of fact, to be determined by the jury, and let us see how the case was submitted to the jury for the determina tion of it. plaintiff purchased a ticket from Philadelphia to Columbia, and was ejected from the car during the time his ticket was in force, and when he was riding on it, before he reached his destination, by the conductor or employees of the defendant, then the jury may find in favor of the plaintiff, provided they also find that, while as a passenger, he was not disorderly and used no indecent or profane language in the car." This seems to me, upon due consideration, to be a proper presentation of the law of the case. In 5 Amer. & Eng. Encycl. of Law, page 594, the text-writer says that “a carrier may eject from its vehicle of carriage a person who has no ticket and who refuses or fails to pay fare when demanded." And on page 598, that In the charge, it was said: "A carrier may eject from its vehicle of carriage a person who has no ticket and who refuses or fails to pay fare when demanded, and it has also been decided by the courts that the use of indecent or profane language in a railway coach works a forfeiture of a passenger's right to be carried as such. If, however, the plaintiff did nothing of this kind on the car, and what took place was after he had" riotous and disorderly conduct, or the been ejected from the car, and the conductor put him out on account of his bad conduct, then the conductor had no right to put him off on this account. If the plaintiff paid his fare to Columbia, and the jury believe that he was guilty of no disorderly conduct on the car, then the defendant is liable in damages for his ejectment from the car. If, on the contrary, the plaintiff was guilty of disorderly conduct, such as has been claimed or been proven before you, then he has no right of action, because, under such circumstances, they had the right to put him off the car. If the plaintiff had given his ticket to the same conductor, and, in answer to a new demand for a ticket, he replied, as he has testified, that he had no ticket, and had paid his fare once and would not pay it again, and this was true, the conductor was not warranted in putting him off on account of any such expressions." Also, in answer to plaintiff's first point, which read as follows: "If the jury believe the plaintiff purchased a ticket from Philadelphia to Columbia, and was ejected from the car during the time his ticket was in force, and when he was riding on it, before he reached his destination, by the conductor or employees of the defendant, their verdict should be in favor of the plaintiff," the Court told the jury: "We say that, if the jury believe the use of indecent or profane language in a railway coach, works a forfeiture of a passenger's right to be carried as such, and he may, for such misconduct, be ejected from the carrier's vehicle. It is sufficient to justify the ejection of the passenger if his conduct is such as to make it reasonably certain that, by act or speech, he will become offensive and annoying to other passengers, although he has not committed any act of annoyance." In Pittsburgh & Connellsville Railroad Company . Pillow, 76 Pa., 510, it was held that conductors on cars have control over the passengers and are as responsible for its exercise as for properly running the train; that it is the duty of passenger-carriers to repress all disorderly and indecent conduct in their cars, and persons guilty of rude or profane conduct should be at once expelled." Mr. Justice Gordon, after stating this principle, said: "Such is the doctrine of the books. It is wise and good, and necessary for the protection and comfort of those who travel upon our railway lines, and who, from the very character of the means used for their transportation, are, during such transportation, almost wholly dependent upon the railway officers for their safety and wellbeing." See, also, Kelley v. Lehigh Valley Railroad Company, 236 Pa., 110: Flint . The Norwich & New York |