"This court cannot say as a matter of law that the board manifestly erred in holding 'that the condition of the claimant's hands, as the result of said accident, constitutes a permanent loss of the use of such members,' and 'that the injuries resulting from said accident were such violence to the physical structure of the body as is contemplated in section 301, art. 3, of the Workmen's Compensation Act (Act June 2, Appeal from Court of Common Pleas, 1915 [P. L. 738]), and resulted in total permaWashington County. Claim under the Workmen's Compensation Act by Charles Cartin against the Standard Tin Plate Company. From an order dismissing an appeal from decision of Workmen's Compensation Board allowing the claim, defendant appeals. Appeal dismissed. Appeal from Workmen's Compensation Board. McIlvaine, P. J., in the court of common pleas, filed the following opinion: "As we view the Workmen's Compensation Board, it is, in effect, a tribunal chosen by the parties to settle a dispute between them, its award to be final and conclusive unless the award as made is in violation of some law or is obtained by fraud. This court has jurisdiction to review the award of the board, fairly and honestly made, only when the validity or binding effect of the same turns upon a question of law. In other words, the findings of fact, the weight that has been given those facts as a controlling factor in the formation of the final judgment of the board, and the amount of compensation allowed, are prima facie final and conclusive between the parties, and the burden is on the appellant, in case of an appeal, to convict the board of such an error in law as will vitiate its award. Has the appellant in this appeal done that? We think not. "There is and can be no dispute as to the extent of the physical injury to the claimant's hands, respectively; as to the kind of work that he had learned to perform and could do at the time of the accident; or as to the amount of wages he could and was earning with his hands when they were injured. "The contention in this case arises over the question how this admitted injury of the hands affected their use in doing the work that he had previously been able to do. The claimant's counsel contend that the determination of this question is the finding of a fact, while the defendant's counsel contends that its determination is the decision of a question of law. If the claimant's contention is correct, then this court has no power to review, modify, or set aside the findings of the referee on this question; it having been affirmed by the board of compensation. "The finding complained of is as follows: "That the condition of the claimant's hands, as nent disability, being suffered in the course of the claimant's employment by the defendant company.' "In deciding this question it must be remembered that the Workmen's Compensation Act of 1915 gives to the board thereby created certain discretion and freedom of judgment in making a settlement between an employer and an employé, and an exercise of that discretion and freedom of judgment in good faith will not be reviewed by this court; such a review being allowed only when the settlement is contrary to law or an error of law has been made by the board which vitally affects that settlement. "How can it be said that the board committed an error in law because it did not adopt the theory of the witness, Dr. McCurdy, that the claimant's present disability to work with his hands would, by practice or a systematic training of the parts of his hands that were not cut off, hereafter to a certain extent disappear? The claimant testified that he could not use his hands to do any kind of work. The board had a right to look at the present condition of the claimant and pass its judgment thereon, leaving the future developments to be passed upon at a rehearing if the defendant could show that this improvement-probable at the time of the hearing-had actually taken place. The award provides for a weekly payment of $10, to continue not exceeding 500 weeks, and in an amount not exceeding $4,000, as provided in article 3, § 306, cl. 'a' of the Compensation Act, and the practice before the board to give rehearings where necessary is well established. Indeed, in the case at bar, counsel aver that Chairman Mackey in his opinion said: 'At present the claimant is totally disabled, but he is young and might in time develop a degree of skill and might find some work to which he could adapt himself, and in either of these events the board could entertain a petition to reopen the case and compensate him according to section 306, clause "c," which would be 175 weeks for each hand,' making the aggregate of the two periods 350 weeks in place of a maximum of 500 weeks. "To summarize, we hold: "1. That the findings of fact in this case as affirmed by the Board of Compensation, in the absence of fraud, coercion, or any improper conduct, are final. "2. That the findings of the referee, affirmed by the board, 'that the condition of the claim For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ant's hands, as the result of said accident, con- 15. CONTINUANCE 12-DISCRETION OF TRIAL stitutes a permanent loss of the use of such COURT-PHYSICAL INABILITY TO APPEAR. members,' is a fact found and not a question of law decided such as this court can review, modify or reverse upon appeal. "3. That the defendant's remedy at this date, if it has any, is a petition to the board for a rehearing and not an appeal." "5. That the settlement made in this case does the appellant no injustice and is not and was not made contrary to law." Argued before STEWART, MOSCHZISKER, FRAZER, SIMPSON, and FOX, JJ. George C. Bradshaw, John C. Sherriff, and Alexander P. Lindsay, all of Pittsburgh, and Erwin Cummins, of Washington, Pa., for appellant. Adolph L. Zeman, of Pittsburgh, for appellee. PER CURIAM. The question here sought to be raised was clearly one of fact, not of law, and the learned court very properly decided that into such controversy it could not enter. Poluskiewicz v. Philadelphia & Reading Coal & Iron Co., 257 Pa. 305, 101 Atl. 638, is a case in point. Appeal dismissed at appellant's cost. Though depositions on a motion for a continuance for defendant's physical inability to appear showed that he was absent by advice of a physician, but that it would not be a serious risk to his health to attend the hearing, the refusal of a continuance was not an abuse of trial court's discretion. 6. EQUITY 389-FINDINGS AND CONCLUSIONS-PRACTICE. In an equity case, it is not error to adopt the requests for finding of fact and conclusions of law submitted by one of the parties; such practice being authorized by equity rule 62. Appeal from Court of Common Pleas, Lackawanna County. Bill in equity by F. R. Davidson against C. P. Davidson for an account, delivery of stocks, and payment of money. From a decree directing an accounting, defendant appeals. Affirmed without prejudice. Testimony was taken on behalf of the plaintiff. Defendant offered no evidence. The court entered the following decree: "Now, January 28, 1918, this cause came on to be heard at a term of equity court, and was argued by counsel, and upon consideration thereof it is ordered, adjudged, and decreed as follows: "First. That the defendant account to the plaintiff as to all matters included in the court's Jan. 4, findings of fact and conclusions of law, the account to be filed within 30 days from this date. "Second. That the defendant pay the costs of this proceeding." On an appeal under Act June 24, 1895 (P. L. 243), from a preliminary decree in an equity suit directing defendant to account, the appellate court will not consider the extent or details of the account, or whether anything was in fact due plaintiff; the sole question being that of liability to account. 2. TRUSTS 17, 18(2)-PAROL AGREEMENT. Where defendant for years made investments for and attended to complainant's financial affairs, and acknowledged that he held as security for complainant's indebtedness certain shares of stock subject to complainant's order, and bought and sold stock pursuant to complainant's orders, the agreement, though oral, created a continuing valid and enforceable trust. 3. LIMITATION OF ACTIONS 102(4, 11), 103 (2) CONTINUING TRUST. A continuing trust is not barred by the statute of limitations, in the absence of a termination by settlement or repudiation by the Argued before STEWART, MOSCHZISKER, FRAZER, and FOX, JJ. M. J. Martin, J. H. Price, C. B. Price, and S. B. Price, all of Scranton, for appellant. John P. Kelly and Charles P. O'Malley, both of Scranton, and John M. Gunster, for appellee. FRAZER, J. Defendant appeals from a decree of the court below directing him to render an account to plaintiff as trustee for shares of stock coming into his hands from time to time for the benefit of plaintiff. The appeal is taken under the provisions of the act of June 24, 1895 (P. L. 243), allowing an appeal by defendant in equity cases upon the preliminary question of liability, where complainant prays for an account and defendant denies liability. Plaintiff and defendant are brothers, and for a number of years previous to August 30, 1901, defendant made investments for and attended to the financial affairs of plaintiff. On the date mentioned an account was agreed upon between them, and an agreement signed wherein plaintiff acknowledged he owed defendant a specified sum of money, [6] Defendant also complains of the action of the court below in adopting the requests for findings of facts and conclusions of law submitted by plaintiff. There is no merit in this complaint, as equity rule 62 specifically authorizes the judge to adopt or affirm requests submitted by the parties, or state his findings and conclusions in his own language. This practice was approved in Dickey v. Stevenson, supra. and defendant acknowledged he held, as se- | 224 Pa. 267, 73 Atl. 342; Commonwealth v. curity for such indebtedness, shares of stock Fencez, 226 Pa. 114, 75 Atl. 19. of the United States Lumber Company, and also other shares for account of plaintiff and subject to his order. Plaintiff's bill avers, and the court below found, that, subsequent to the date of the writing above referred to, defendant bought and sold for plaintiff, at various times, shares of stock of other corporations pursuant to verbal agreement whereby defendant continued to attend to the purchase and sale of stocks for plaintiff. The answer admits there were stock transactions between the two, but denies indebtedness to his brother, and avers plaintiff is indebted to him "on the various transactions which I have had with him" in a sum exceeding $50,000. Defendant offered no evidence at the hearing, and the testimony on behalf of plaintiff to the effect that defendant was acting as trustee for him in various transactions was ample to sustain the findings and conclusions of the court below that defendant became a trustee for plaintiff and was liable to account as such. The decree of the court below is affirmed, without prejudice, however, to the rights of defendant to set up such defense as he may have, either as to the stocks to be included in the account or their amounts and values. (262 Pa. 493) STAHL v. BUFFALO, R. & P. RY. CO. (Supreme Court of Pennsylvania. Jan. 4, 1919.) 1. EMINENT DOMAIN 238(6)-PROCEEDINGS TO ASSESS DAMAGE-APPEAL-AMENDMENT OF PETITION. Where petition for appointment of viewers to assess damages for land taken by railroad merely described actual acreage taken for right of way, the court upon trial de novo on appeal from viewers' report may permit plaintiff to amend description by adding that it was part of a stated larger tract. 2. EMINENT DOMAIN OF PETITION-ACREAGE. 238(6)—AMENDMENT [1-4] Consideration of the extent or details of the account, or whether anything is, in fact, due plaintiff is unnecessary at this time. The sole question before us under the act is that of liability to account. Beatty v. Safe Deposit & Title Guaranty Co., 226 Pa. 430, 75 Atl. 592. The agreement the court found existed between the parties, though oral, created a valid and enforceable In proceeding for appointment of viewers trust (Dickey v. Stevenson, 198 Pa. 447, 48 to assess damages for land taken by railroad for Atl. 410; Washington's Estate, 220 Pa. 204, right of way, an amendment on appeal from 69 Atl. 747), which was a continuing one, viewers' report by adding that the land taken and, consequently, not barred by the statute was part of a larger tract is a correction of of limitations (Barton v. Dickens, 48 Pa. pleadings so as to enable jury to assess damag518), in absence of a termination by settle-es on true basis of difference in market value ment or repudiation by the trustee (Mar- of tract as a whole before and after appropriashall's Estate, 138 Pa. 285, 22 Atl. 24; Smith tion. ▼. Smith, 38 Pa. Super. Ct. 251). The trans-3. LIFE ESTATES 23-CONVEYANCE BY LIFE actions between the parties were an open TENANT-EFFECT. running account; the last item consisting of a payment by defendant March 1, 1911, which was within the limitation period before filing the bill. Entry of railroad company on right of way pursuant to a deed by life tenant was valid against life tenant, but conferred no rights against life tenant's children owning the fee. 4. LIFE ESTATES 8-LIMITATIONS. to Where life tenant conveyed a right of way railroad, the statute of limitations would not run against his children, the owners of the fee during his life. FEE-LIFE ESTATE. [5] Defendant moved for continuance of the case, alleging he was physically unable to appear and depositions were taken in support of the motion. Examination of the depositions shows that, although defendant was absent in Florida by advice of his phy-5. PARTITION 12(5)—RIGHT OF OWNER OF sician on account of ill health, his condition was not such as would indicate a serious risk in attending the hearing. An application for continuance is an appeal to the discretion of the court below, and, under the circumstances developed in this case, it does not appear the discretion was abused. Hall v. Vanderpool, 156 Pa. 152, 26 Atl. 1069; Gillman v. Media, etc., Railway Co., continues, the heirs of the deceased wife owning 266 RAILROAD RIGHT OF WAY-REMEDIES OF OWNER. Where right of a railroad to right of way ceased at death of a life tenant who had con For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (3) "If, as alleged by the plaintiff, the title to this land was vested in Henry Shaffer and his five minor children at the time the railroad company made its location and appropriation, and there being no evidence that the plaintiff has since acquired, by assignment or otherwise, the right of the other four children to their proportionate shares of said damages, the plaintiff cannot maintain this action, and the verdict of the jury must be for the defendant." Answer: Refused. (4) "It appearing from the undisputed evidence that the railroad company did not enter upon the land under its right of eminent domain, but under and pursuant to the deed from Henry Shaffer offered in evidence, and that it has been 9. EMINENT DOMAIN 124, 320-DAMAGES- in the open, continuous, exclusive, and adverse RIGHT OF ACTION. The owner's filing of a petition for viewers vested title to right of way and the right to compensation therefor, to be assessed as of the date of filing of petition. 10. EMINENT DOMAIN 124 - VALUE OF LAND-EVIDENCE. Where railroad having taken deed of right of way from a life tenant might have secured its right of way from owners of the fee by condemnation proceedings wherein guardian would have been appointed for minors, but did not do so, such right of way must be paid for at its value when acquired, so that evidence as to price of land when it took life tenant's deed was irrelevant. 11. INFANTS 30(1)-PROPERTY ENTRY BY RAILROAD CONSENT OF INFANTS. Where owners of fee were minors without guardian at railroad's entry on right of way under a conveyance by life tenant, no inference of their acquiescence could be drawn, and the entry could not be treated as an entry with their consent. possession of said land, under said deed, since 1882, or for a period of about 33 years before the petition in this case was filed, the title to said land was, at that time, vested in the defendant by more than 21 years' adverse possession, and the plaintiff cannot maintain this action, having no title to or interest in the land appropriated by the railroad company, and the verdict of the jury must be for the defendant." Answer: Refused. Verdict and judgment for plaintiff for $3,300. Argued before BROWN, C. J., and STEWART, WALLING, SIMPSON, and FOX, JJ. John W. Reed, of Clearfield, John G. Whitmore, of Ridgway, and C. Z. Gordon, of Brookville, for appellant. A. J. Truitt, of Punxsutawney, for appellee. WALLING, J. This was a proceeding to assess the damages on account of land taken for railroad purposes. Barbara Shaffer, who 12. LIFE ESTATES 23 DEED FROM LIFE was the owner of a farm of 118 acres situatTENANT-NOTICE TO REMAINDERMEN. During the continuance of a life estate, those holding the remainder are not bound to notice a possession taken and continued by virtue of a conveyance from the life tenant. ed in what is now the town of Sykesville, Jefferson county, died in 1878, intestate, leaving a husband, Henry Shaffer, and five children. In 1882, said surviving husband, while the children were minors and without guardian, gave the predecessor of the defend Appeal from Court of Common Pleas, Jef- ant a deed for a right of way through the ferson County. Petition by Christiana Stahl, for appointment of viewers to assess damages, against the Buffalo, Rochester & Pittsburgh Railway Company. From the report of viewers, petitioner appeals; and, from a verdict and judgment for petitioner, defendant appeals. Affirmed. At the trial the defendant presented the following points: farm of the width of 100 feet, on which a railroad track was then constructed and has since been in continuous use. Plaintiff was the eldest child and became of age in 1884. By a partition in 1890 that part of the farm here in question, containing 9.68 acres, was allotted to plaintiff, subject to the life estate of her father, who died in 1913. From said allotment plaintiff conveyed to defendant 1.45 acres, not here in controversy, leaving her the owner of 8.25 acres, of which 3.65 (1) "There being no evidence offered in this acres were embraced in said right of way. case to show the market value of the property Barbara Shaffer's deed for the farm was rein question at the time of the location and ap-corded in 1867. Prior to these proceedings, propriation of the defendant's right of way over the same, to wit, in 1882, or how the market the railroad company never secured or sought value thereof was affected by said location and to secure any title to said right of way exappropriation, at the time the same was made, cept that conveyed by the Henry Shaffer the verdict of the jury must be for the defend- deed. On plaintiff's petition the court below, ant." Answer: Refused. November 23, 1914, appointed viewers to assess the damages for the right of way | B. R. Co. v. Warrell, 122 Pa. 613, 16 Atl. 20. through that part of the farm allotted to And the damages belong to him who owns her; and, from the viewers' report, she took the land when the servitude is imposed upon an appeal to said court, where an issue was framed and jury trial had resulting in a verdict and judgment for plaintiff; from which defendant brought this appeal. [1, 2] Her original petition described the land affected by the right of way as 3.65 acres, which merely included that occupied by defendant; but after the appeal from the viewers' report the trial court permitted plaintiff to amend the description by adding that it was a part of a larger tract (described in the amendment) including in all 8.25 acres. This did not introduce a new cause of action, as plaintiff's claim was still based on the appropriation of the same land; but corrected the pleadings so as to enable the jury to assess the damages on the true basis of the difference in the market value of the tract as a whole before and after the appropriation. A finding of the viewers, submitted with their report, shows that they understood that to be the correct measure of damages. The proceedings on such appeal are de novo and subject to amendment as in other cases, and plaintiff may be permitted❘ to amend his petition so as to correctly describe the land affected by the condemnation. It has been held that in such case an amendment may be allowed including lands purchased pending the proceedings. Boyd et al. v. Negley, 40 Pa. 377, 384. And see Election Cases, 65 Pa. 20, 35; Penna. & N. Y. R. R. Co. v. Bunnell, 81 Pa. 415; Wilson v. Scranton City, 141 Pa. 621, 630, 21 Atl. 779. [3-6] The entry of the railroad company in 1882 was admittedly pursuant to the deed from the life tenant and valid as against him, but conferred no rights as against his children, who owned the fee, nor did the statute of limitations run against them during his life. Gernet v. Lynn, 31 Pa. 94; Wolford v. Morgenthal, 91 Pa. 30. While the life estate continued, the heirs of Barbara Shaffer were not affected by defendant's occupation of the farm, nor prevented from making partition thereof; but, as the right of defendant therein ceased at the death of the life tenant, plaintiff might have brought ejectment against the railroad company for so much of the 8.25 acres as it then occupied (Pittsburgh & Lake Erie R. R. Co. v. Bruce, 102 Pa. 23; Richards v. Buffalo, etc., R. R. Co., 137 Pa. 524, 19 Atl. 931, 21 Am. St. Rep. 892); or she might, as she did, waive the tort and have viewers appointed to assess the damages. [7-10] Where land is taken for public use, the title of the owner is not divested until his damages are paid or secured. Speer V. Monongahela R. R. Co., 255 Pa. 211, 99 Atl. 810; Johnston v. Delaware, L. & W. R. R. Co., 245 Pa. 338, 91 Atl. 618; Wheeling, P. & it. Here as to plaintiff the servitude was imposed when the viewers were appointed. Williamsport, etc., R. R. Co. v. Philadelphia, etc., R. R. Co., 141 Pa. 407, 21 Atl. 645, 12 L. R. A. 220; Heilman v. Union Canal Co., 50 Pa. 268; Shevalier v. Postal Teleg. Co., 22 Pa. Super. Ct. 506. That is undoubtedly the true rule, but there is some lack of uniformity in the decisions. The owner's right to compensation becomes a personal claim when his title to the land is divested. When plaintiff filed her petition for viewers, on November 23, 1914, it vested in the defendant a title to the right of way and in her the right to compensation therefor, to be assessed as of the date of filing her petition. The other heirs had then no interest in the 8.25 acres, nor she in their purparts; hence each must proceed separately. That this may cause additional expense to the defendant results from its predecessor's neglect to acquire a permanent title at the inception. The railroad company might then have secured its right of way from the heirs of Barbara Shaffer by condemnation proceedings wherein a guardian would have been appointed for the minors; but that step was not taken and such right must now be paid for at its value when acquired. Therefore evidence as to the price of the land in 1882 was irrelevant. [11, 12] As the heirs were minors without guardian at the time of the original entry, no inference of their acquiescence can be drawn; so far as relates to them, it cannot be treated as an entry with the owner's consent. And, during the continuance of a life bound to notice a possession taken and conestate, those holding the remainder are not tinued by virtue of a conveyance from the life tenant. See Railroad v. Boyer, 13 Pa. 496, 500. As the trial court disposed of the case according to the views herein stated, the assignments of error are overruled, and the judgment is affirmed. (262 Pa. 557) REDA V. MAYER CHINA CO. (Supreme Court of Pennsylvania. Jan. 4, 1919.) 1. MASTER AND SERVANT 277-RELATION -SUFFICIENCY OF EVIDENCE. Where a minor applied to defendant for and became his helper and was paid by him, as employment and was taken to a piece worker known to defendant's superintendent, and defendant exercised control over minor's work and owned the material and tools, and its superintendent ordered mill carpenter to make certain steps over which minor tripped, mus For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |