Dalzell, Fisher & Hawkins, of Pittsburgh, | from which the jury could find that the defendfor appellee. PER CURIAM. The facts in this case sufficiently appear in the concise opinion of the learned court below overruling the motion for a new trial, and, as they disclose no negligence on the part of the defendant as the proximate cause of the injuries sustained, the judgment on the verdict directed in its favor is affirmed. (269 Pa. 221) FARRELL v. BOGGS & BUHL, Inc. Where the chauffeur of defendant's motorbus saw the automobile truck with which he collided 45 feet away coming out of an alley across his way, and could have stopped in a few feet, but did not slacken speed or give any signal and ran into the side of the truck with resulting injury to a passenger, his negligence was for the jury. ant was negligent. As to this, there was evidence from which the jury might well infer negligence. There was evidence that defendant's chauffeur saw the other automobile with which of an alley across his way, and that he could he came in contact, 45 feet away, coming out have stopped within a few feet, but did not slacken his speed or give any signal, and that the autobus ran into the side of the other automobile. As to the injury complained of having been caused by the accident, the case is one which could not have been taken from the jury, although in our opinion the verdict was greatly against the weight of the evidence and a new trial would probably have been granted if asked for. Being of opinion, therefore, that the case was one in which the evidence was such as required its submission to the jury, the motion is refused. It is ordered that judgment be entered on the verdict, upon payment of the verdict fee. Argued before BROWN, C. J., and FRA- PER CURIAM. The complaint of the appellant is that this case was submitted to a jury. No complaint is made of the charge Appeal from Court of Common Pleas, Al- if it was for their consideration, and there is legheny County. Trespass by Rose T. Farrell against Boggs & Buhl, Incorporated, for personal injuries while a passenger in defendant's autobus, as the result of a collision. From an order refusing defendant's motion for judgment n. o. v., after verdict and judgment for plaintiff for $3,700, defendant appeals. Affirmed. The court refused a motion for judgment for defendant n. o. v. in the following opinion by Shafer, P. J., in the common pleas: The action is against the owners of a department store for injuries alleged to have been caused by the negligence of the driver of an autobus operated by them in connection with the store. The defendant claims that the plaintiff failed to make out a case in two respects: (1) That there was not sufficient evidence to go to the jury of negligence on the part of their chauffeur; and (2) that it did not sufficiently appear that the injury complained of was caused by the accident. no assignment alleging error in the admission or rejection of testimony. That the injuries sustained by the appellee resulted from the collision of appellant's automobile bus, in which she was riding, with a truck, was a fact fairly to be found from the testimony, and that the question of the negligence of appellant's chauffeur as the cause of the collision was for the jury, clearly appears in the opinion of the learned court below denying the motion for judgment non obstante vere dicto. Judgment affirmed. (262 Pa. 540) ZIMMERMAN v. ZIMMERMAN et al. (Supreme Court of Pennsylvania. Jan. 4, 1919.) 1. BILLS AND NOTES 36-CONFLICTING DUE DATES-EVIDENCE-NONSUIT. In suit on a note under seal containing two inconsistent due dates, first, "one day after date," and, second, "to be paid at my death," where plaintiff's parol evidence to explain patent ambiguity failed to show real due date, or to enable court to determine which date was to be accepted, a nonsuit was properly entered. 2. BILLS AND NOTES As to the negligence, the jury was instructed that under the circumstances of the case the defendant was liable for that degree of care which a carrier of passengers owes to them. The defendant contends that this instruction was erroneous. If there had been no evidence to go to the jury other than the presumption arising from the accident, which was a slight collision with another automobile, this would present a case not free from difficulty and the instruction might possibly have been ground for a new trial, which is not moved for. The only question under the If a note was payable one day after date present motion is whether there was evidence and action thereon was not commenced until SUMPTION. 499-PAYMENT-PRE more than 20 years after that date, a presump- 3. BILLS AND NOTES SEAL. Where a note is under seal, it is not essential to show a valuable consideration. B. N. Freeland and C. W. Waychoff, both of Waynesburg, for appellant. James J. Purman, John L. Wood, and A. F. Silveus, all of Waynesburg, for appellees. MOSCHZISKER, J. [1] This is a suit on a promissory note under seal, dated Decem Appeal from Court of Common Pleas, ber 12, 1891, for $7,000, "with interest from Greene County. Assumpsit on a note under seal by V. A. Zimmerman against Robert J. Zimmerman and another, executors of James R. Zimmerman, deceased. From an order refusing to take off a nonsuit, plaintiff appeals. Affirmed. date," accompanied by a warrant of attorney to confess judgment. The instrument presented in evidence contains two inconsistent due dates: First, it reads, "one day after date I promise to pay," etc.; then this appears, "to be paid at my death." The warrant of attorney authorizes immediate judg The note in suit was in the following form: ment and execution without stay. Argued before STEWART, MOSCHZISKER, FRAZER, SIMPSON, and FOX, JJ. Plaintiff was permitted to introduce oral evidence in support of his claim; but a nonsuit was entered, which the court below subsequently refused to remove. This appeal followed. The opinion declining to take off the nonsuit states it was granted for three reasons: "First, the two dates in the note offered in evidence are so contradictory and repugnant te each other as to constitute a patent ambiguity, which, in the absence of any allegation in the plaintiff's statement of either fraud, accident, or mistake, is not susceptible of explanation by parol testimony; second, even if parol testimony be admissible to explain such ambiguity, the evidence offered is not sufficient for that purpose; *third, plaintiff cannot recover under the pleadings in this case." While not so deciding, for present purposes we shall consider the case as though the pleadings were, in all particulars, sufficient and the evidence competent and relevant. In other words, we shall confine our attention to the second above-quoted reason for the nonsuit, which, if valid, is controlling. The trial court properly viewed the instrument in suit as patently ambiguous; but, nevertheless, permitted all the testimony offered by plaintiff, upon the theory that "The patent ambiguity which cannot be explained by parol evidence is that which remains uncertain after the court has received evidence of the surrounding circumstances and collateral facts. * * * In other words, and more generally speaking, if the court, after placing itself in the situation in which the parties stood at the time of executing the instrument, and with full understanding of the force and import of the words, cannot definitely ascertain the meaning and intention of the parties, from the language of the instrument thus illustrated, it is a case of incurable and hopeless uncertainty, and the instrument✶ ✶ * cannot be sustained or rendered operative by the introduction of evidence which would necessarily have the effect of adding new terms to the writing." [2] We fully agree with the learned court below that the testimony presented by plaintiff fails either to make plain the real due date of the note in suit or to shed such light For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes RE ACTIVE TRUST MAINDER-RULE IN SHELLEY'S CASE. Where the interest of the first taker under a will is only in the income of an active trust, the rule in Shelley's Case is not applicable, although the remainder is to his heirs. 3. TRUSTS 135 ACTIVE TRUST Du thereon as to enable one to determine which | ply if he is only given an interest in a part of of the two dates mentioned in the instrument the income contingent as to amount on the hapmust be accepted. The trial judge, under pening of certain stated events. the circumstances, could do naught but en- 2. WILLS 608(1) ter a nonsuit; for, if the note was payable one day after date, then, since action thereon was not commenced until September 1, 1916, more than 20 years after that date, a presumption arose that the obligation had been paid, which the evidence introduced by plaintiff was insufficient to overcome. Of course, if the note was not payable till the death of the maker (which occurred December 14, 1915), no such presumption could prevail; but, even if the fact involved were legally susceptible of oral demonstration, the testimony is inadequate to show that the last-mentioned time should be accepted as the correct due date. It matters not from what standpoint the note is viewed, whether on its face alone, or in the light of the oral evidence; the fatal ambiguity still remains. Hence no recovery can be had thereon, and, when requested, the court below properly so held. TIES OF TRUSTEE. Where a testamentary trustee is required to take possession of and lease property, collect rents, make repairs, pay taxes, and distribute the net rents, the trust is an active one. Appeal from Court of Common Pleas, Allegheny County. Bill by Jeremiah Deniston and another against James Deniston, and Samuel W. Black, R. T. M. McCready, and the Union the will of Letitia Deniston, deceased, and Trust Company of Pittsburgh, executors of others, for partition of No. 439 Wood street in the city of Pittsburgh. From a decree Argued before BROWN, C. J., and FRAZER, WALLING, SIMPSON, and FOX, JJ. and Patterson, Crawford, Miller & ArensThomas Patterson, R. T. M. McCready, berg, all of Pittsburgh, for appellants. [3] Defendants state several other reasons in support of the nonsuit, i. e., that the al-awarding partition, Samuel W. Black and legata and probata do not agree, material others, executors, appeal. Decree affirmed, alterations on the face of the note, and lack and appeal dismissed. of evidence sufficient to show a valuable consideration. Since we have already placed our decision upon one controlling ground, it is not necessary to discuss these other points; but it may not be amiss to say that, the instrument being under seal, it was not essential to show a valuable consideration (Mack's App., 68 Pa. 231), and to note that we have reviewed the case as though the amendment offered by plaintiff, to make the declaration agree with his proofs, actually had been allowed. The authorities relied upon by plaintiff are all distinguishable from the case at bar, for in each of them the alleged ambiguity in the instrument sought to be enforced is explainable upon some reasonable theory of a single due date; that is to say, in each instance the note itself, when carefully analyzed, may justifiably be construed as containing but one such date, which is not the case at bar. The assignments of error are overruled, and the judgment is affirmed. Stambaugh, and Watson & Freeman, all of of Pittsburgh, for appellee John Shannon. both of Pittsburgh, for appellees Smith, SIMPSON, J. The action below was a proceeding in equity for partition of No. 439 Wood street, in the city of Pittsburgh. The only question raised is whether or not, under the will of Letitia Deniston, deceased, her son Henry and her daughters Ellen and Letitia acquired a fee-simple title in the said property by virtue of the rule in Shelley's Case. The court below decided against that claim, and from its decree this appeal was taken. It is frankly admitted that if there was an active trust as to this property, the equitable life estate would not coalesce with the legal estate in remainder, and the rule would not apply. Three paragraphs of the will must be considered. In the third paragraph, after the gift of another property to her son Henry, [Henry or daughters Ellen and Letitia receiving testatrix provides: any of said rents." "And in addition to the above devise I bequeath to him [Henry] during his lifetime one seventh part of the net rents, issues and profits of my house, on the westerly side of Wood street, a short distance below 5th street, in the city of Pittsburgh. The same, now and for some time past occupied by Messrs. Rineman. The other six-sevenths of the net rents of said Wood street house to be divided equally between my daughters Ellen and Letitia, provided however, that should the net annual rent accruing from said premises, amount to over seven hundred dollars exclusive of taxes, repairs, etc., the said Henry then to receive one hundred dollars annually and the balance be equally divided between said Ellen and Letitia or their children. But in the event of either the said Ellen or Letitia dying without leaving issue surviving, in that event the survivor shall be entitled to three-fourths of said net rents during life and Henry to one-fourth, and in this proportion the fee shall go to their chil dren at their decease." In the sixth paragraph she provides: "To my executors hereinafter named and to the survivor of them and to the executor or ad ministrators of such survivor I devise the afore said house and lot on Wood street in the occupancy of Rineman, in trust nevertheless, and upon the express condition to permit and allow my said son Henry to receive to his own use during his life one-seventh of the net rents provided the same does not amount to over one hundred dollars annually, but, if so then he to receive one hundred dollars annually and to permit and allow my said daughters, Ellen and Letitia to receive equally between them the balance of the net rents accruing from said premises during their lives, and in further trust at their decease to their right heirs in fee, provided however, that either died without leaving issue surviving her, then and from thenceforth my said son Henry to receive onefourth of the net rents and the surviving sister, whether Ellen or Letitia, three-fourths, and upon the death of the said survivor and the said Henry, then in trust for their right heirs in fee; but in the event of both Ellen and Letitia leaving lawful issue surviving, Henry to have no interest in said premises beyond that of his natural life." In the ninth paragraph, after giving to her son the personal property on her farm, subject to the payment of her debts, she continues: "Provided the same does not amount to over $50, but if so, then all my debts over and above that amount shall be paid out of rents accruing from my house on Wood street prior to my son [1] It will be noticed that there is no gift to the son and daughters of a freehold or any other interest in the property itself. Nor is there a gift to them of the gross rent from which there might be implied a gift of the property out of which the rent issues. This alone would prevent the operation of the rule in Shelley's Case; for there must be a freehold estate in the first taker, before the rule can operate at all. It is argued, however, that the conclusion stated depends on whether or not the will creates an active trust; for if it be a passive or dry trust, the statute executes the use, and the first taker would have a freehold estate. Assuming this to be so, the same conclusion is reached. [2] The only gift of the property is to the trustee. To the son and daughters is given but a portion of the net rents. The third paragraph specifies how those rents are to be ascertained, viz. after the payment of "taxes, repairs," etc. Some one must determine what repairs shall be made, and must pay the expense thereof, and the taxThe sixth paragraph provides for this es. by devising the property to the executor as trustee. Moreover, the son and daughters have no definite interest in those net rents when ascertained. Under the ninth paragraph, in the contingency there expressed, testatrix's debts must be first paid out of those net rents before the son and daughters receive any thereof. And even after the debts are paid, neither the son nor the daughters have any fixed proportionate interest in the balance of the net rents. If that balance amounts to $700 a year or less, the son gets one-seventh and each of the daughters threesevenths thereof. But if that balance exceeds $700 a year, the son gets $100 thereout and each of the daughters gets one-half of the remainder. [3] It is clear, therefore, that the trust is an active one. Livezey's Appeal, 106 Pa. 201; Hemphill's Estate, 180 Pa. 95, 36 Atl. 409; Wolfinger v. Fell, 195 Pa. 12, 45 Atl. 492. The trustee must take possession of and lease the property, must collect the rents, must determine what repairs are needed, must pay the "taxes, repairs, etc.," and must distribute the net rents thus ascertained in the manner hereinbefore specified. Decree affirmed, and appeal dismissed at the costs of appellants. (263 Pa. 244) PATER v. SUPERIOR STEEL CO. (Supreme Court of Pennsylvania. Jan. 4, 1919.) 1. MASTER AND SERVANT 348-WORKMEN's clauses in section 306 of the Workmen's Compensation Act of June 2, 1915, P. L. 736: injuries of the following classes, the compensa"For all disability resulting from permanent tion shall be exclusively as follows: For the loss of a hand, fifty per centum of wages during one hundred and seventy-five weeks. For the loss of an arm, fifty per centum of wages during two hundred and fifteen weeks. Amputation between the elbow and the wrist 2. MASTER AND SERVANT 385(12)-WORK- shall be considered as the equivalent of the loss MEN'S COMPENSATION ACT-CONSTRUCTIONEXTENT OF INJURY-"Loss of ARM." of a hand, and amputation between the knee and ankle shall be considered as the equivalent of the loss of a foot. Amputation at or above the elbow shall be considered as the loss of an arm, and amputation at or above the knee shall be considered as the loss of a leg. Permanent loss be considered as the equivalent of the loss of of the use of a hand, arm, foot, leg, or eye shall such hand, arm, foot, leg, or eye." Where injury necessitated amputation of arm below the elbow resulting in employe's permanent loss of use of his arm, he was entitled to compensation for loss of the arm, rather than for loss of hand, under Workmen's Compensation Act, § 306, which includes all cases of permanent loss of members mentioned therein without regard to point of amputation as well as in The contention of appellant is that, as the case of loss from injury not requiring amputa-arm was amputated between the elbow and tion. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Loss of Limb.] wrist, the claimant lost only a hand under the statute, and was therefore entitled to compensation for but 175 weeks. The act is remedial and is to receive a liberal con Appeal from Court of Common Pleas, struction. Quinn v. Fidelity Beneficial Ass'n, Allegheny County. Proceedings for compensation by Elmer Pater against the Superior Steel Company. From a judgment sustaining an order of the Workmen's Compensation Board affirming the award of a Referee, defendant appeals. Appeal dismissed, and award affirmed. Argued before BROWN, C. J., and FRAZER, WALLING, SIMPSON, and FOX, JJ. George Bradshaw and Charles F. Patterson, all of Pittsburgh, for appellant. Allen Davis, of Pittsburgh, for appellee. BROWN, C. J. The right arm of Elmer Pater, an employé of the Superior Steel Company, was caught in one of its rolls and badly crushed. Amputation followed, about an inch or three-fourths of an inch below the elbow. The referee found that 100 Pa. 382; Poor District of Huntingdon Township v. Poor District of New Columbus Borough, 109 Pa. 579; Commonwealth v. Shaleen, 215 Pa. 595, 64 Atl. 797; Jones v. Beale, 217 Pa. 182, 66 Atl. 254. But aside from this, under the fact found by the referee, the express words of the statute called for the award made to the claimant. He had permanently lost the use of his arm. While the act declares that amputation at any point between the elbow and wrist shall, ipso facto, be considered the equivalent of the loss of a hand, it further provides, in the same clause, that permanent loss of the use of an arm shall be equivalent of its loss. This can have but one meaning, and that is the permanent loss of the use of an arm, with or without amputation, resulting from injuries sustained by a workman, shall be the equivalent of the actual loss of the arm. If in the present case there had been no amputation, but the arm had been so crushed as to hang permanently useless at the side of the claimant, could his right to compen. sation for 215 weeks be questioned? The finding of the referee is that, as the result of the injuries which he sustained in the Under this finding he was awarded com-course of his employment, he has permanentpensation for 215 weeks. From the award ly lost the use of his arm, and the amputaan appeal was taken, on the ground that the tion which necessarily followed is not a compensation should have been but for 175 determining factor in fixing the basis upon weeks, for the loss of a hand. The award which compensation is to be allowed. This was affirmed by the compensation board. An appeal followed to the court below, and from its order, affirming the award, there is this appeal by the steel company. "On account of the amputation of the forearm so near the elbow joint and from the restricted motion of the elbow due to infection and interference with the muscles that move the joint the claimant has lost the permanent use of the right arm for all practical purposes." was the correct view of the learned court below, as expressed in the following construction which it placed upon the words of the statute: [1, 2] The question before us depends upon "They were intended to cover or include all the proper construction of the following cases wherein there is a permanent loss of the |