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(211 Pa. 287)

CHEAT VALLEY R. CO. v. HUMES. (Supreme Court of Pennsylvania. March 20, 1905.)

CORPORATIONS TREASURER-MISAPPLICATION

OF FUNDS.

Where a treasurer of a corporation distributes to himself and other stockholders moneys of the corporation without any authority from the directors, and without a dividend having been declared, he is liable therefor to the corporation.

working at a mangle, defendant's negligence and plaintiff's contributory negligence held, under the evidence, questions for the jury.

2. A servant has a right to expect that his employer will provide reasonably safe appliances, and, unless he has knowledge that they are dangerous, he assumes no risk from their defective character.

[Ed. Note. For cases in point, see vol. 34, Cent. Dig. Master and Servant, § 547.]

3. Though there may be but one witness in an action for personal injuries to support the case of plaintiff, and several witnesses for defendant, it is error for this reason to enter a

Appeal from Court of Common Pleas, Ly- nonsuit. coming County.

Action by the Cheat Valley Railroad Company against Hamilton B. Humes, administrator of Samuel Humes. Judgment for plaintiff. Defendant appeals. Affirmed.

At the trial it appeared that the defendant was treasurer of the plaintiff, the Cheat Valley Railroad Company. On June 1, 1903, the defendant received as treasurer $2,000, which were rentals due the plaintiff from the Buck Horn Portland Cement Company. Immediately thereafter he distributed the said sum to himself and two other stockholders, who practically owned all of the stock of the plaintiff. He made this distribution without any authority from the directors, and without any dividend having been declared. On June 5, 1903, all of the stock of the plaintiff company was sold and assigned by its then stockholders to another party. On the same day the defendant resigned his position as treasurer. New officers and new directors were elected, and this suit was subsequently brought against the defendant.

Argued before DEAN, FELL, MESTREZAT, POTTER, and ELKIN, JJ.

John J. Reardon, for appellant. C. La Rue Munson and Addison Candor, for appellee.

PER CURIAM. The reasons in his charge amply sustain the learned judge of the court below in his peremptory instruction to find a verdict for plaintiff. The money in the hands of the corporation treasurer belonged to the corporation, this plaintiff; except under the charter and by-laws of the corporation, it could not lawfully be drawn therefrom. The method by which defendant and his colleagues obtained it is wholly unlawful.

The assignments of error are overruled, and the judgment is affirmed.

(211 Pa. 277)

BARTHOLOMEW v. KEMMERER. Supreme Court of Pennsylvania. March 20, 1905.)

MASTER AND SERVANT DANGEROUS APPLI

ANCES-NONSUIT.

1. In an action against the proprietor of a laundry to recover for injuries received while

[Ed. Note.-For cases in point, see vol. 46, Cent. Dig. Trial, § 342.]

Appeal from Court of Common Pleas, Northampton County.

Action by Laura Bartholomew against Oscar E. Kemmerer. Judgment for defendant, and plaintiff appeals. Reversed.

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

Calvin F. Smith, for appellant. A. Goldsmith and W. C. Shipman, for appellee.

MESTREZAT, J. The defendant's negligence and the plaintiff's contributory negligence were for the jury, and not for the court, to determine. The plaintiff is an illiterate German woman, whose knowledge of the English language was so deficient that the learned trial judge evidently failed to comprehend the import of her testimony. She entered the service of the defendant in 1902, and was then employed in his box factory. Subsequently she was transferred to his laundry, and was engaged in ironing by hand. She was next put to work by her employer at a mangle, which was her first experience at this kind of labor. In operating this machine, the plaintiff was protected by a top over the rolls, which prevented the fingers or hand of the operator from being drawn into the machine. and coming in contact with the rolls. On one occasion the plaintiff was compelled to be absent from her employment for two weeks or more by reason of the illness of her daughter. On her return to the laundry, the defendant informed her she could have her old job again at the rolls. She immediately went to the place in the laundry where she had previously been employed to resume her work on the mangle. She found there a different machine, which the defendant had substituted in place of the former mangle during her absence. It was a Wilson mangle, and different in construction from the one on which she had previously worked. It had no top over the rolls for the protection of the operator. The first time the plaintiff made an attempt to operate the machine her hand was drawn into it and badly injured. This action was brought to recover damages for this injury, which the plaintiff alleges was caused by the negligence of the defendant.

It is claimed by the plaintiff that the defendant was negligent in furnishing a defective and unsafe mangle, and in not instructing her how to operate the machine.

It is conceded that the Wilson mangle is a modern, up to date machine, and is so regarded by the trade. But it is claimed by the plaintiff that when she was put to work on it the wooden guard which is in front and a part of a complete machine, and is used for the protection of the operator, had been removed, and that thereby the machine became dangerous to the person feeding it. The plaintiff alleges she knew nothing about the machine or its construction, and did not know that a perfect Wilson machine had a guard in the front to protect the operator. She thought, as she alleges, it was so constructed that it could be operated with safety, and was ignorant of any danger in feeding the machine in the absence of a guard rail. It is admitted that she received no instructions as to the manner of operating the mangle.

The learned counsel for the appellee, in their printed argument, say: "The question [for consideration here] is solely one of fact, and reduces itself down to whether there was a guard upon the mangle through which the plaintiff was injured." It is further said in the appellee's printed argument that "this assertion [that there was no guard upon the machine] is directly and flatly contradicted by the evidence of all the witnesses as aforesaid, with the exception of the plaintiff herself, who lamely admits that she does not even know what a guard is." And for this reason the appellee maintains that the court was right in withdrawing the question from the jury. This view fails to discriminate between the province of the court and that of the jury in the trial of causes. All controverted questions of fact supported by testimony are for the jury to ascertain and determine from the evidence. And the duty of the court and jury respectively does not depend upon the number of witnesses testifying on either side. There may be but one witness called to support the plaintiff's case, while, on the other hand, the defendant may support his contention by a great many witnesses, yet the court would unquestionably invade the province of the jury if for this reason it entered a nonsuit against the plaintiff. We think the plaintiff's testimony as to there being a guard on the mangle when she was injured was sufficient to go to the jury on that question, and that she was partly corroborated by at least another witness. She testified positively and distinctly that there was no guard on the machine when she commenced to operate it, that the machine was open, and that she could see the bare rollers. In reply to the questions of counsel, she reiterated her testimony as to this fact. The appellee, however, says her testimony is "absolutely unintelligible,"

because, his counsel having asked her what a guard is, she replied, "I don't know." Her defective knowledge of the language and lack of familiarity with the machine fully account for her answer. Almost in immediate connection with their former question, the counsel asked her again: "And you don't know what a guard is, do you?" To which she answered: "No; it wasn't on." To another question of similar import, she replied that "it was all bare when I was there." It is very probable that, she did not know the name of the piece of wood used to protect the hands of the person operating the machine, and which is called a "guard." This, however, does not discredit her testimony, but, on the other hand, tends to show her ignorance of the machine at which she was put to work, and the consequent necessity for instructions. Her testimony discloses her illiferacy, and the fact that very frequently she did not comprehend the counsel's questions.

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The plaintiff was to some extent corroborated by the testimony of Mr. Driesbach, the expert. He testified that, "if that guard was in place, that girl couldn't see in and see those bare rolls. When a person sees a bare roll, I would take it for granted that the machine was unguarded." If she tells the truth as to seeing the bare rolls of the machine, Driesbach corroborates her as to the absence of a guard from the mangle at the time she met with the accident. It is quite true that he testified that the Wilson mangle was manufactured and sold with a railed guard. But he did not see this machine on the day of the accident, and, of course, could not testify that there was a railed guard on it at that time.

The appellee called three witnesses who testified that the guard was on the machine at the time the plaintiff was injured. The number of witnesses to that point was clearly with the appellee. But that fact did not withdraw the question from the jury. The credibility of the witnesses, including the plaintiff, was solely for the jury, and should have been submitted to them.

The learned trial judge directed a verdict for the defendant because the plaintiff's "case falls clearly within the inflexible rule that an employé assumes all open and obvious risks which he had had an opportunity to ascertain that are incident to the discharge of his duties." The legal proposition announced by the court is correct, but he was in error in holding that it withdrew this case from the jury. Mr. Driesbach, the expert, testified: "Q. State what is the ordinary kind of mangle used, and generally used by the trade-a guarded or an unguarded mangle? A. A guarded mangle, sure.

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Q. In all laundries that you have been in, and that you know anything about, state whether or not they generally use the guarded mangle. A. Yes, sir; always, to the best

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of my knowledge. Q. Assuming that the mangle we are talking about was a Wilson mangle, was then a guard proper at that or not proper? A. Yes, sir. Q. And if a Wilson machine did not have a guard on, then it was not properly equipped? A. No, sir. * * * Q. Is a guarded machine more or less dangerous than an unguarded? A. Sure, a guarded machine is less dangerous than an unguarded." It was the contention of the plaintiff, which, it will be observed, is supported by this testimony, that the mangle, with which she had had no former experience, was defective, and not a safe machine, by reason of the absence of the guard. It was further claimed by her that she had received no instructions how to operate this machine, with or without a guard. The jury would have been justified in sustaining her contention as to these matters, under the evidence submitted to them. The plaintiff, by virtue of her employment,, did not assume the risk of defective machinery, as we have time and again decided. "The general rule that a workman assumes the risks incident to his employment when he enters upon it," says Mr. Justice Williams in Rummel v. Dilworth, 131 Pa. 509, 19 Atl. 345, 17 Am. St. Rep. 827, "is well settled, but its application is subject to certain qualifications. He certainly has the right to expect his employer to provide machinery, tools, and appliances that are reasonably safe for his use, and he assumes no risks growing out of their defective character unless he has been fully advised that they are defective and dangerous." Cargill v. Philadelphia Towel Supply & Laundry Co., 185 Pa. 269, 39 Atl. 962, was an action for injuries received by a girl while engaged in feeding a mangle. In its facts and the questions for determination, it resembles very much the case in hand. There it was claimed by the defendant company that the plaintiff was employed only to shake out the towels, and not to help generally in the laundry, which included operating the mangle. Soon after her employment

she commenced to work at the mangle by which she was injured. The evidence was conflicting as to whether she was instructed regarding the work, and as to the necessity for instructions. The mangle had no guard on it, and the evidence was conflicting as to whether a guard increased or decreased the danger. The plaintiff's hand was caught in the mangle while she was feeding towels to it, but she was unable to say how it had happened. The plaintiff alleged that the defendant was negligent in taking her from the employment for which she was hired, and putting her to a more dangerous employment, without having given her proper instructions as to the danger of the new employment, or as to the manner in which she should work upon the machine, and that the mangle was negligently maintained by defendant, in that the protection or guard which should have been in place to prevent plaintiff's hand from being drawn into the mangle had been suffered to be away from its proper place. These, it will be observed, are the negligent acts complained of in this action. At the conclusion of the testimony in the case cited, the court was requested, as here, to direct a verdict for the defendant; but the request was refused, and the case was submitted to the jury, which returned a verdict for the plaintiff. This court affirmed the judgment entered on the verdict, thereby holding that the case is for the jury where the evidence is conflicting as to whether the plaintiff was properly instructed before being placed at work at the mangle, whether the absence of a guard rendered the machine more dangerous, and whether the plaintiff herself was guilty of contributory negligence. These were the questions raised in the case at bar, and the learned judge was in error in directing a verdict in favor of the defendant on the ground that the plaintiff assumed the risk of her employment.

The assignments of error are sustained, and the judgment is reversed, with a venire facias de novo.

(211 Pa. 331)

HIBBERD v. HUBBARD et al.

(Supreme Court of Pennsylvania.

1905.)

(No. 1.) April 10,

ADMINIS

PLEADING AND PROOF-VARIANCE
TRATION-DEATH OF PARTNER-MIS-
APPLICATION OF ASSETS.

1. Where plaintiff declares on a joint obligation against four persons, and fails to produce testimony showing liability on the part of one of them, he cannot recover.

[Ed. Note. For cases in point, see vol. 39, Cent. Dig. Pleading, § 1316.]

2. Where the administrator of a deceased partner pays to one of the surviving partners, on his withdrawal from the firm with the knowledge of all the other surviving partners, out of the funds in his hands as such administrator, money in settlement of his share in the business, the withdrawing partner and the administrator and the other partners are liable to the estate of the deceased partner for the funds so misapplied.

Appeal from Court of Common Pleas, Philadelphia County.

Action by Dilworth P. Hibberd, administrator, against George L. Hubbard and others. From an order dismissing exceptions to report of referee, plaintiff appeals. Reversed.

From the record it appeared that George K. Hubbard, George L. Hubbard, Elon H. Guyn, R. Alfred Zimmerman, and George A. Cotton, special partner, on December 1, 1892, formed a copartnership to carry on a wholesale grocery business in Philadelphia, to expire on November 30, 1895. This business was carried on under the agreement until February 27, 1895, upon which day George K. Hubbard died. The remaining partners and the administrator of the estate of George K. Hubbard, with the expressed consent of all the rest of kin of the decedent, carried on the business as theretofore until November 30, 1895. George A. Cotton and the administrator then withdrew, and George L. Hubbard, Elon H. Guyn, and R. Alfred Zimmerman then formed a new copartnership, and took over the interest of the estate in the former business. George A. Cotton called for his share of the assets. George L. Hubbard, as administrator, paid to Cotton $11,300, and the other members paid $13,700 to him; making the total $25,000. In 1896 Hubbard, administrator of Hubbard, deceased, had an appraisement made by said George A. Cotton and George W. Souder of the undivided interest of George K. Hubbard in the firm of George K. Hubbard & Co. The appraisers valued the said interest at $33,797.20, and the administrator charged himself in his account with the same, and the adjudication thereof by the orphans' court of Philadelphia county was confirmed absolutely during the year 1896. In September, 1903, the orphans' court removed George L. Hubbard from his said office as administrator, and appointed D. P. Hibberd to be administrator de bonis non of the estate of

No

George K. Hubbard, deceased. In the year 1901 George L. Hubbard, as administrator, began an action against the defendants by summons in assumpsit directed to them. statement of claim was filed or cause of action disclosed until after the substitution of the present plaintiff for Hubbard. The statement of claim contained two counts: (1) To recover the sum of $33,797.20, with interest, for the interest of decedent's estate in the former firm of George K. Hubbard & Co., which said interest had been taken over, used, and appropriated by the said defendants in continuing the said business after the death of George K. Hubbard, with the understanding that they should account to and pay said estate the value of the interest so taken, when ascertained by an appraisement; (2) to recover the sum of $11,300, with interest, paid by the administrator to Cotton in settlement for special contribution upon the dissolution of the copartnership. After the cause was at issue, it was referred, by agreement of the parties, under the provisions of Acts of Assembly of May 14, 1874 (P. L. 166), and of May 4, 1889 (P. L. 80), to George Tucker Bispham. The referee found in favor of the defendants upon the first count mentioned above, and for the plaintiff upon the second count. A supplemental report was made, in which the finding for the plaintiff upon the second count was reduced by $3,556.94-to the sum of $11,207.90.

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

J. Barton Rettew, for appellant. John G. Johnson, Samuel P. Tull, and Richard C. Dale, for appellee.

ELKIN, J. Two questions are raised by this appeal. The plaintiff, in one count of his statement of claim, seeks to recover the sum of $33,797.02, with interest, less a credit of $8,728.65 paid on account, against four defendants jointly. At the trial he failed to produce testimony to show a liability on the part of one of the defendants. The learned referee so found as a fact and as a conclusion of law. The appellant declared on, but failed to prove, a joint liability. The probata did not sustain the allegata. This is the end of one branch of the case. All assignments of error relating thereto are overruled.

The second count of the declaration raises a different question. It is herein sought to recover $11,300, with interest, from George L. Hubbard, Elon H. Guyn, R. Alfred Zimmerman, and George A. Cotton, as individuals. This action is predicated on the allegation that George L. Hubbard, as administrator of George K. Hubbard, deceased, had wrongfully paid to the said George A. Cotton, at the instance and with the consent of the other defendants, the amount claimed, out of funds in his hands as administrator. The

estate of George K. Hubbard, deceased, was not indebted to Cotton. The surviving partners of the firm of George K. Hubbard & Co. may have been so indebted. It is contended that the administrator of the decedent had no right to appropriate the trust funds to the payment of firm debts. The learned referee has so found, in the following language: "The payments made by the administrator to the defendant Cotton in December, 1895, and April, 1896, were wrongful, and constituted a diversion of trust funds. When these payments were received by the defendant Cotton, he knew that they were paid out of trust funds, and he thereby made himself individually responsible for the return of these amounts to the personal representatives of George K. Hubbard." The learned referee further discusses the question in his opinion, wherein it is said: "It is plain that the payments of December 26, 1895, and April 22, 1896, were made in breach of trust. They were made by checks drawn on the administrator's account. They were not made in discharge of any obligation for which the estate was answerable. They were misappropriations of trust funds. The defendant Cotton, to whom these payments were made, was informed by the very transactions themselves that the administrator had no right to make them. There is no doubt, therefore, that both George L. Hubbard and the defendant Cotton would be answerable for these amounts." If the case had ended here, it would have been properly decided. Exceptions were filed to the original report of the referee, and argued before him. He then filed a supplemental report in which he modified his original findings, and, by so doing, has raised the only meritorious question for the consideration of this court. The modification made in the supplemental report can best be stated in the language of the referee: "There is one qualification to be made. At the time that the December payment was made, the fund on which the check was drawn was composed in part of George L. Hubbard's interest in the money paid by the Order of Sparta, which interest was one-third of $2,500, of $833.33; and when the payment in April, 1896, was made, the fund on which the check was drawn was composed in part of George L. Hubbard's interest in the money paid by the Massachusetts company, $2,- | 723.61. So far as these two sums, therefore, are concerned, to wit, $833.33 and $2,723.61, George L. Hubbard had a right to do as he pleased with them. Any finding, therefore, against the defendants, based upon this transaction, must be subject to the deduction of the total of these two sums, namely, $3,556.94." We do not agree with the referee in this respect. All of the testimony had been taken, the facts found, and conclusions of law stated, when the first report was made. There was no new or additional testimony before the referee when the reduction of the

award was made in his supplemental report. We must therefore consider the facts as shown by the evidence at the time of the first report.

In order to intelligently understand the matter in controversy, it is necessary to briefly state some of the material facts: At the time of the death of the decedent, his estate consisted very largely of his interest in the firm of George K. Hubbard & Co., which said interest was appraised at $33,797.02; the total inventory filed being $47,062.03. He also had three policies of life insurance in force at the time of his decease: One in the National Life of Vermont for $10,000, payable to his estate; one in the Bay State Beneficial Association of Massachusetts in the sum of $10,000, payable to his three children; and the remaining policy being in the Order of Sparta, in the sum of $2,500, in which the children were named as beneficiaries. The exact date when the National Life of Vermont paid the amount of its policy to the administrator is not definitely fixed. The evidence shows that the Order of Sparta on November 18, 1895, paid $2,500 to George K. Hubbard, who represented the beneficiaries. It also appears that the Bay State Beneficial Association paid to George K. Hubbard, as representative of the beneficiaries, on April 9, 1896, $8,170.84; being the net proceeds of that policy. On December 26, 1895, the administrator paid Cotton, by his check on the trust fund, $8,500. It is clear at that time the administrator had sufficient trust funds in his bank account to make this payment. Cotton himself testified that this payment was made out of trust funds, and indicated from whence the trust funds had been derived. In reference to this matter he states: "They paid me, I think, some time the latter part of December, 1895, $8,500; and that came from a policy that was payable to the estate, if I remember rightly." The only policy payable to the estate was the one in the National Life of Vermont, and there can be no doubt that this was the fund out of which he was paid said amount. We must conclude, therefore, that the first payment to Cotton was made entirely out of trust funds. The check itself was drawn on the administrator's account. There is no evidence in the case sufficient to negative the necessary and logical conclusion based upon these facts. It is clear, therefore, that the referee's finding in his original report that the first payment to Cotton was made out of trust funds is correct.

How about the second payment of $2,800 on April 22, 1896? The testimony shows that the administrator did have or should have had sufficient trust moneys in his bank account at that time to make this entire payment. It is true that, in addition to the trust funds, he deposited in his account the moneys received from the Order of Sparta and the Bay State Beneficial Association. Just

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