over as security the creditors should realize as much as possible, and should then look to the debtors only for the remainder, which would be, comparatively speaking, a small sum. The court below apparently accepted the view urged by counsel for the appellee that this was the ordinary contract of pledge and collateral security. The fact seems to have been overlooked that the parties to this transaction made a special contract, which provided a special mode of procedure, and called for the disposal of the collaterals before proceeding against the debtors. The citation of such cases as Hartranft's Estate, 153 Pa. 530, 26 Atl. 104, 34 Am. St. Rep. 717, and O'Neill v. Whigham, 87 Pa. 394, by counsel for the appellees, makes it apparent that they lost sight of the distinction between the form of the agreement made in this case, and that of an ordinary promissory note, with which collaterals have been deposited. Those cases were upon promissory notes containing a direct and independent promise by the debtor to pay, and the collateral agreement was in addition to and independent of it. But here, as we said in the outset, the action is strictly upon the agreement, and under its terms the collateral must be converted and applied upon the indebtedness before the defendants can be pursued, and then they are liable only for the deficiency.

The assignments of error are sustained, and the judgment is reversed.

(210 Pa. 507)

TEMME v. SCHMIDT. (Supreme Court of Pennsylvania. Dec. 31, 1904.) INTOXICATING LIQUORS-CIVIL DAMAGE ACT

PROXIMATE CAUSE.

In an action against a saloon keeper to enforce a civil liability for selling liquor to plaintiff's husband, held, that it was for the jury to determine whether an attack of gangrene was the result of alcoholism, caused by sales by defendant, and exposure induced by it, or whether it was a separate and intervening cause of death.

[Ed. Note. For cases in point, see vol. 29, Cent. Dig. Intoxicating Liquors, §§ 459, 460.] 'Mitchell, C. J., and Dean and Brown, JJ., dissenting.

Appeal from Court of Common Pleas, Allegheny County.

Action by Elizabeth Temme against Philip Schmidt. From an order refusing to take off a nonsuít, plaintiff appeals. Reversed.

Argued before MITCHELL, C. J., and DEAN, FELL, BROWN, MESTREZAT, POTTER, and THOMPSON, JJ.

Joseph M. Friedman, for appellant. L. K. Porter, S. G. Porter, and Ed. G. Hartje, for appellee.

POTTER, J. This action was brought in the court below to enforce in behalf of the plaintiff and her children the civil liability of the defendant for selling intoxicating liq

uor to Albert Temme, the husband of the plaintiff, a man of known intemperate habits. It is alleged that by reason of the sale of the liquor to Albert Temme, and its use by him, he became intoxicated, and unable to care for himself, and was for a considerable period stupefied and delirious, and unduly neglected and exposed himself by reason thereof, so that in consequence he sickened and died. The question in the case was whether the liquor sold and furnished by the defendant was the proximate cause of his death. At the 'close of the testimony offered by the plaintiff the trial court entered judgment of compulsory nonsuit, and the subsequent refusal of a motion to take it off is here assigned as error. If the facts were not in dispute, and if the only inferences to be drawn from them were inconsistent with the claim of the plaintiff that the death of her husband was properly chargeable to the act of defendant in selling liquor to him, then the entry of the nonsuit was proper. But, if the evidence is fairly open to another construction, then the question of proximate cause should have been submitted to the jury, to be determined as a fact, in view of all the circumstances attending it. The question always is in such a case, was there an unbroken connection in the series of events between the wrongful act and the injury? An examination of the evidence shows that Albert Temme had for years indulged to excess in drink; that when under the influence of liquor he acted like a maniac; that about the 1st of December his wife notified the defendant not to sell her husband any more whisky, but the notice was not heeded; that whisky was sold to him both at the bar of the defendant and in bottles, which he brought home, and drank almost continuously, keeping himself in a state of prolonged debauch; that his conduct was such that his wife and children were compelled to leave the house on or about Monday, December 2d. A son, about 15 years old, stayed with him, attempting to care for him. He took this boy with him to defendant's saloon on Tuesday night, and drank liquor, and got a bottle, and took it home with him, and when that was done, he went back and got another bottle, and, according to the testimony of the boy, kept it up in this manner all the week, and was drunk all that time, practically going without food, and subsisting only upon whisky. On the next Sunday a physician was called in, who testified that he found on Albert Temme symptoms of delirium tremens, and that he was suffering from alcoholism and the results of exposure. He ordered him taken to the hospital, which was done the same evening. The physician at the hospital testified that when he first saw him there, some four days afterwards, he was in a cell in the alcoholic ward, and that he was then delirious, presumably (he says) from alcoholism. It also appeared that he escaped from the hospital for a short time, and wandered around in

December weather, without stockings or sufficient clothing, and that he was recaptured, and taken back to the hospital. A gangrenous condition developed in his feet, and he died on December 15th. Dr. McGrew, who examined him at his house, and found no indication of gangrene at that time, gave it as his opinion that the gangrene which developed at the hospital was probably caused by alcoholism and exposure. In his judgment, alcoholism alone would produce gangrene, and, quoting his own language, he said: "I suppose the exposure would help it along. Certainly the man should have been confined to bed and had good attention from the first. That was my idea in sending him to the hospital. The fact of the matter was that he would have died if the man went on the way that he was doing. He didn't have any chance at all. That is the reason I advised him to be sent to the hospital, and I suppose his delirium continued there, as he escaped from there. In fact, the man should have been confined to bed in a straight-jacket, and kept in bed somehow or another."

Now here was a succession of facts and circumstances beginning with the sale of liquor by the defendant to Albert Temme and extending to the time of his death, some two weeks later. Was there any intermediate cause not attributable to the original wrong, which brought about the death? Or was the succession of events so linked together as to constitute a natural whole? This court said in Davies v. McKnight, 146 Pa. 610, 23 Atl. 320: "It is not easy, in a case of this kind, to trace with absolute certainty the death to its proximate cause. But the liquor was undoubtedly the proximate cause of his falling into the gutter, and the consequent exposure, and it was for the jury to find whether the attack of pneumonia was the result of the exposure; in other words, a continuous causation from the furnishing of the liquor." And in Brashear v. Traction Co., 180 Pa. 392, 36 Atl. 914, where an injury to a woman resulted in premature childbirth, followed by tetanus, which caused her death, and the medical testimony agreed that, while tetanus resulting from childbirth is comparatively rare, there is a distinct relation between it and childbirth, especially miscarriage, and it is one of the natural and probable consequences to be apprehended, and there was no evidence that would have justified the court in saying that there was an intervening independent cause-the question of proximate cause was held to be for the jury. Our Brother Fell said (page 396 of 180 Pa., page 916 of 36 Atl.): "The causal connection was shown and the continuity of effect was traced through the succession of events. No other cause of death was assigned. True, it was shown that the disease was caused by specific infection, but by the same witnesses it was shown that the miscarriage made the deceased especially liable to infection." And again, in McCaffer

ty v. Penna. R. R. Co., 193 Pa. 339, at page 344, 44 Atl., at page 435, 74 Am. St. Rep. 690, we said: "The connection between the accident and the death was not clearly established. The deceased was injured by the derailment of the car in which he was riding on April 1, 1896. He lived until April 12, 1897, and the immediate cause of his death was an abscess on the liver. A month before he died he had a severe attack of grippe. It was incumbent on the plaintiff to show with reasonable certainty that the abscess was caused by the injury received. This was difficult to do, as the disease is one whose origin is difficult to trace. The medical testimony produced by the plaintiff was in itself far from convincing, but it was fortified by proof that her son had never recovered from the effect of his injuries, and that they were apparently internal, and indicated a serious derangement of the liver before he had the grippe. We are not prepared to say that the court should have instructed the jury that the testimony did not warrant the conclusion that the death was the natural and proximate consequence of the accident. The question, however, is one which should be submitted with most careful instructions."

In the present case there is testimony upon the part of the plaintiff, which, if believed by the jury, is sufficient to warrant a finding that the liquor sold by the defendant to the decedent was the proximate cause of the attack of alcoholism, and the delirium and exposure which accompanied it. There was medical testimony to the effect that gangrene might follow as the result of alcoholism alone, although exposure would increase the liability. But it was for the jury to find whether the attack of gangrene was the result of the alcoholism and the exposure induced by it, or whether the gangrene was a separate and sufficient independent intervening cause of the death. We think that the inferences to be drawn from the facts disclosed by the testimony were not so clear as to justify the court in taking from the jury the determination of the proximate cause of the death. The first assign ment of error is sustained.

The judgment is reversed, and a procedendo awarded.

BROWN, J. (dissenting). There is no positive evidence that after December 3, 1901, the appellee had furnished any liquor to the husband of the appellant. On Sunday, December 8th, he was taken to the hospital. On Tuesday, the 10th, he escaped from it, and wandered about hatless, having, according to the testimony of the plaintiff, "nothing on but his shoes, no socks, no underwear, no underdrawers." On the 12th the resident physician of the hospital began to treat him, and saw him three or four times a day until he died. That physician was the only witness who undertook to say what the

cause of death had been. He stated that gangrene in the foot was the active cause, superinduced by cold and frost, and that the deceased had been afflicted with it for probably 24 hours before his death. Dr. McGrew, who had been the regular physician of the deceased, did not see him after he was taken to the hospital. This witness was asked what, in his judgment, had been the cause of the gangrene, if informed that the deceased had suffered from it a week after his admission to the hospital. The reply was, he thought alcoholism and the exposure would bring it on. He further, stated in his examination in chief that "the man should have been kept in bed somehow or other." In the face of this, a jury could not truly find that the liquor alleged to have been furnished by the appellee to the deceased after December 3d had been the direct, proximate cause of the death; but by sending the case to a jury he may be subjected to the serious consequences of a guess that he was directly responsible for the death. Such a verdict would mean that he was responsible for the escape of the deceased from the hospital out into the cold but half clad, and with no stockings on his feet; for the attending physician testifies that the gangrene from which he suffered after being admitted to the hospital resulted from exposure, and was the direct cause of death. In Davies v. McKnight, 146 Pa. 610, 23 Atl. 320, on which the appellant mainly relies, a recovery was had and sustained because "the liquor was undoubtedly the proximate cause" of the deceased's falling into the gutter "and the consequent exposure." It cannot be pretended that liquor furnished by the appellee, whenever it may have been furnished, was the proximate cause of the exposure of appellant's husband. I would not disturb the judgment of nonsuit.

MITCHELL, C. J., and DEAN, J., concur.

(210 Pa. 537)

In re PERRYSVILLE AVENUE. Appeal of MARSHALL'S ESTATE et al. (Supreme Court of Pennsylvania. Dec. 31, 1904.)

MUNICIPAL IMPROVEMENTS-RETAINING WALL.

Where a street is built on a side of a steep hill, and a retaining wall is necessary for its support, abutting owners who knew of the building of the wall, and most of whom requested the same, are liable for assessments for the benefits arising therefrom, though the wall was not actually built on their land.

Appeal from Court of Common Pleas, Allegheny County.

In the matter of the widening of Perrysville avenue. From an order dismissing exception to the report of viewers, the estates of

Thomas M. Marshall and others appeal. Affirmed.

Argued before MITCHELL, C. J., and DEAN, FELL, BROWN, and THOMPSON, JJ.

Thomas M. Marshall, Jr., and Frank P. Sproul, for appellants. Stephen G. Porter, City Sol., W. W. Stoner, and Craig Smith, for appellee.

FELL, J. These appeals are from an order confirming the report of viewers assessing the costs of widening and grading Perrysville avenue, in the city of Allegheny. The only question argued is whether the city could assess against the abutting properties a part of the cost of stone walls built at places along the sides of the avenue. A part of the avenue was constructed on the sides of steep hills, and at these places walls were built on the lower side to support the roadway, and on the upper to protect it from banks of earth and stone. Some of these walls were built in part, and some of them wholly, on the adjoining properties. None, however, were built on the land of the appellants. The determination of the plan and manner of improving the avenue rested with the municipal authorities, and the abutting properties were liable to assessment to the extent to which the local improvement was a permanent benefit to them. If the walls were a necessary part of the street improvement, and the right to maintain them on private property was secured by the city, their cost was properly included in the assessment. The court found that they were necessary for the support and protection of the street; that they were built with the knowledge of the property owners, and in most cases at their request or with their express consent; and that the facts disclosed by the testimony estopped the owners to question the right of the city to maintain the walls. In Western Penna. Railway Co. v. Allegheny, 92 Pa. 100, relied on by the appellants, the city assumed the right to locate a retaining wall partly on the property of the railway company, and built it against the company's protest, and assessed the company with the cost thereof. It was held that the building of the wall was without authority, in violation of law, and a trespass, and that, since the part built on the company's property might be removed by it, and the part within the line of the street was not self-sustaining, and was of no value to the public, no part of the cost could be assessed from the company. In the case before us the city got by consent an easement which it could have obtained by adverse proceedings, and the structure, being lawful, necessary, and permanent, was properly included in the assessment of benefits.

The order confirming the report of the viewers is affirmed at the cost of the appel. lants.

(210 Pa. 513) PITTSBURG VALVE, FOUNDRY & CONSTRUCTION CO. v. KLINGEL

HOFER et al.

(Supreme Court of Pennsylvania. Dec. 31, 1904.)

LIMITED PARTNERSHIP-SALE OF BUSINESS-EFFECT ON MANAGER.

The business of a limited partnership was sold to a company formed from the consolidation of several concerns. The contract provided that the parties thereto "will not, nor shall any member of said parties concerned, engage in a similar business for the period of ten years.' The agreement was signed by the chairman of the limited partnership. Held, that he could not, in a suit brought to restrain him from engaging in a similar business, claim that he did not know the agreement bound him individually.

Appeal from Court of Common Pleas, Allegheny County.

Bill by the Pittsburg Valve, Foundry & Construction Company against George E. Klingelhofer and others. Decree for plaintiff, and defendants appeal. Affirmed.

The court found the facts to be as follows: (1) In March, 1900, negotiations were had between certain parties engaged in the foundry, machine, valve and pipe fitting business in the city of Pittsburg and vicinity, looking to a consolidation of their interests and the formation of a corporation, and agreements were made by them with one Van Tine for the sale of their respective plants to Van Tine for that purpose; the agreements, which are all upon the same form of printed blank, containing this agreement: "Said vendors hereby further agree that they will not nor shall any member of said vendors concerned engage in a similar business to that now carried on by said vendors except as otherwise noted in said Schedule A forming a part hereof, *

for a period of ten years," etc. What exceptions were contained in Schedule A do not appear from the evidence. The Pittsburg Valve & Machine Company, Limited, a joint-stock association of the city of Pittsburg, made one of these agreements, and the individual members of it, including all of the defendants, executed a contemporaneous agreement ratifying and confirming the contract made by the company with Van Tine.

(2) The negotiations above referred to were never carried into effect, and were abandoned. Some time in the summer of 1901 the parties, who had been negotiating with Van Tine, or with each other through Van Tine, and one or more additional parties, took up again the matter of forming a corporation to take over their respective properties, and 'held meetings at which a representative of each of the firms conducting the negotiations were present, the Pittsburg Valve & Machine Company, Limited, being always represented by the defendant George E. Klingelhofer, who was the secretary of the meetings; and he was authorized to act in the matter, and also for his brothers, the other two defend60 A.-11

ants. The result of these meetings was that it was agreed, the defendant George E. Klingelhofer concurring, that a company should be formed, and the properties of the various parties taken over by the new company according to the terms of the Van Tine agreements. Counsel were employed to effect the consolidation, and papers were drawn up to be signed by each of the component companies or partnership, which were in fact signed by them on or about October 3, 1900; that which was signed by the Pittsburg Valve & Machine Company, Limited, being set forth as Exhibit A of the bill.

(3) This agreement recites the desire to form a corporation on the part of the parties concerned, naming them, and that the parties, by their five separate agreements, including the present contract, mutually agree to contribute to the corporation the leasehold and personal property owned by them respectively in payment of their shares. It then sets out that in consideration of $1, and of the other contracts executed by the parties, the Pittsburg Valve & Machine Company, Limited, promises and agrees with the other parties, naming them, to contribute to the company $165,000 of the capital stock by conveying to it certain property set out in the agreement, and that they will contribute to the expense of the organization of the company and join in its organization. The agreement then continues: "The said parties further agree that they will not, nor shall any member of said parties concerned, engage in a similar business to that now carried on by said parties except with the written consent of the said corporation for the period of ten years from the third day of October, 1900, within the United States of America east of the Mississippi river." This contract was signed as follows: "The Pittsburg Valve & Machine Company, Ltd. Per G. E. Klingelhofer, Chairman. A. Glamser, Secretary."

(4) At or about the same time agreements in writing were drawn up by counsel, to be signed by the individual members of each of the five companies or partnerships concerned, which recited the above-mentioned contract, and then containing a covenant on the part of each of the officers, directors, members, and stockholders of the respective companies that they would not individually or collectively, within ten years thereafter, engage in this business, and a statement that the covenants therein contained should inure to the benefit of the corporation when formed. A copy of this agreement or proposed agreement is printed as Exhibit B of the bill.

(5) All five of the agreements in the form of Exhibit A of the bill were executed and delivered by the respective parties, and the members and stockholders of the other four companies and partnerships executed and delivered the agreement in the form shown by Exhibit B; but it was not signed, so far as appears at least, by all of the members of the

Pittsburg Valve & Machine Company, Limited; and, whether signed or not, it never came into the possession of the other parties to the agreement or of the corporation, and there is no evidence that it was signed by Charles T. Klingelhofer or W. L. Klingelhofer.

(6) A charter was granted on October 29, 1900, under the corporation act of 1874 and its supplements, to the plaintiff company to engage in the general foundry, machine, valve and pipe fitting business in the city of Pittsburg, being the company the formation of which was contemplated and effected by the agreements above recited. The several companies above mentioned, including the Pittsburg Valve & Machine Company, turned over their property and assets to the new company so formed according to the agreement and received therefor for distribution, among other members or stockholders, stock for the amounts agreed upon, the stock to which the Valve & Machine Company was entitled being delivered to George E. Klingelhofer, who distributed it among the members of the limited company according to their interests, the full delivery of the stock and distribution among the members not being completed, however, until a considerable time after October, 1900.

(7) Upon its incorporation the plaintiff company proceeded to conduct the business for which it was incorporated, and employed the defendant George E. Klingelhofer as its general manager, the defendant Charles T. Klingelhofer as foreman of the pattern department, and the defendant W. L. Klingelhofer as a salesman.

(8) Some time after the formation of the company, and after it had entered upon the conduct of the business, George E. Klingelhofer was asked by one or more of the officers of the company with regard to the contract to be signed by the individual members of his former company in form of Exhibit B, and he told them that he had it signed by all but one of the members of the company; but it does not appear ever to have been delivered to the company.

(9) In the month of July, 1901, disputes arose between George E. Klingelhofer and the directors of the company with regard to the management of the business, and he resigned as general manager.

(10) Some time in the spring of 1902 a company called the American Foundry & Construction Company was organized to carry on the same business as that carried on by the plaintiff, and some time after its organization George E. Klingelhofer was employed as its general manager, and Charles T. Klingelhofer as superintendent of some of its departments, and W. L. Klingelhofer as a salesman. The American Foundry & Construction Company is in competition with the plaintiff company at Pittsburg throughout the country east of the Mississippi river.

and

(11) There is no evidence that Charles T. Klingelhofer or W. L. Klingelhofer ever in fact knew the contents of the agreement Exhibit A, or that George E. Klingelhofer had agreed or undertaken to agree for them that they would remain out of the business.

The court entered the following decree: "And now, to wit, October 3, 1904, this cause came on to be heard at this term, and was argued by counsel, and upon consideration thereof it is ordered, adjudged, and decreed as follows, to wit: That an injunction issue under the seal of this court perpetually enjoining and restraining the said George E. Klingelhofer from engaging, either directly or indirectly, as principal, agent, or employé of any person, partnership, or corporation, or in any other manner, howsoever, in the general foundry, machine, valve and pipe fitting business, or any branch thereof, within the United States east of the Mississippi river, and particularly from engaging in said business for, or with or in the employment of, the American Foundry & Construction Company, its successors or assigns, or continuing in its employment or assisting in its business for the period of ten years from October 3, 1900, without the consent of the plaintiff company; and that the defendant George E. Klingelhofer pay the costs of these proceedings; and that the bill be dismissed as against Charles T. Klingelhofer and W. L. Klingelhofer."

Argued before MITCHELL, C. J., and DEAN, FELL, BROWN, MESTREZAT, and THOMPSON, JJ.

A. Leo. Weil and Chas. M. Thorp, for appellants. W. K. Shiras, for appellee.

DEAN, J. Certain partnerships and companies engaged in the foundry, machine, valve and pipe fitting business at Pittsburg in the year 1900 entered into negotiations with a view to consolidating all their concerns into a single company. One Van Tine was the active party in promoting this effort at consolidation. The different companies all signed this consolidation agreement on a separate blank, prepared for that purpose, in which each stipulated for the sale of its plant to the new company for an ample consideration, and that neither the firm nor company nor any member of it would engage in a similar business to that then carried on for a period of 10 years. The Pittsburg Valve & Machine Company, Limited, made one of these agreements with Van Tine. These three defendants were partners in that company, and all three formally ratified it. The Van Tine consolidation was not carried out, but the next year (1901) the matter was again taken up, and the Van Tine negotiations were adopted as the basis for a new company. Many meetings were held, and at each one of them the defendants' company was represented by George E. Klingelhofer, who acted as secretary, and who was author