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until after the decree appealed from, it can- ment was frozen over with water which came not be considered by this court.

from a terrace. On this counsel for the city For the reasons stated, we will affirm the insist that the jury should not have been perdecree of the court below.

mitted to find that the icy condition of the Decree affirmed, with costs to the appellee. pavement, which caused the appellee's fall,

had existed for a length of time sufficient (245 Pa. 265)

to have given constructive notice of it to

the city. What the appellee testified to in HIBBERD v. CITY OF PHILADELPHIA.

his deposition as to the condition of the street (Supreme Court of Pennsylvania. May 4,

when he passed over it early in the afternoon 1914.) 1. MUNICIPAL CORPORATIONS ($ 821*)—INJURY trial that when he fell, between 5 and 6

He testified on the

may have been true. TO PEDESTRIAN-PROOF OF NEGLIGENCE.

In an action for injuries to plaintiff, a man o'clock in the evening, there was slippery ice of advanced age, from falling on an icy pave- on the pavement, and nothing in his depoment, evidence that the ice had been on the sition was inconsistent with what the other pavement for a week or ten days prior to the accident required that the question of the de- witnesses said as to the length of time the fendant city's negligence in permitting the ice ice had been on the pavement. The learned to remain after constructive notice of its pres- trial judge, with characteristic care, clearly ence, be submitted to the jury, though plaintiff had testified in depositions previously tak- explained to the jury that, unless they found en that 21/2 hours before the accident the ice from all the testimony that the icy condition was soft, but that at the time of the accident of the pavement was dangerous, and had it was frozen over with water which came from been so for so long a time that the city was a terrace; there being nothing in the deposition inconsistent with the other evidence as to presumed to have had notice of it, there the length of time the ice had been on the pave- could be no recovery. He further instructed ment.

them that, if the accident had been caused by [Ed. Note. For other cases, see Municipal ice that had formed on the day it occurred, Corporations, Cent. Dig. $8 1745–1757; Dec.

there could be no recovery. Dig. § 821.*]

The case was 2. MUNICIPAL CORPORATIONS ($ 818*) IN

clearly for the jury, and nothing at all is JURY TO PEDESTRIAN-EVIDENCE.

found in the charge of the court to which the In a pedestrian's action against a city for city can fairly and justly except. injuries from falling on an icy pavement, an ordinance requiring the removal of snow from

[2] The eighth assignment complains of sidewalks was properly admitted in evidence. the admission of an ordinance of the city

[Ed. Note. For other cases, see Municipal requiring the removal of snow from the sideCorporations, Cent. Dig. $8 1726–1738; Dec. walks and gutters in all parts of the city. Dig. 8 818.*]

The admission of this ordinance was not erAppeal from Court of Common Pleas, Phila- ror. Lederman v. Pennsylvania Railroad delphia County.

Co., 165 Pa. 118, 30 Atl. 725, 44 Am. St. Rep. Trespass by John Hibberd against the City 644; Foote v. American Product Co., 195 Pa. of Philadelphia for personal injuries. From 190, 45 Atl. 934, 49 L. R. A. 764, 78 Am. St. a judgment for plaintiff, defendant appeals. Rep. 806; Herron v. Pittsburg, 204 Pa. 509, Affirmed.

54 Atl. 311, 93 Am. St. Rep. 798; Riegert Argued before BROWN, MESTREZAT, V. Thackery, 212 Pa. 86, 61 Atl. 614. POTTER, ELKIN, and MOSCHZISKER, JJ.

No error being disclosed by the record, the Paul Reilly and Thomas Boylan, Asst. City judgment is affirmed. Sols., and Michael J. Ryan, City Sol., all of Philadelphia, for appellant. L. Stauffer Oli

(245 Pa. 212) ver and A. S. Weill, both of Philadelphia, for

In re DARLINGTON'S ESTATE. appellee.

Appeal of SHARPLESS et al. PER CURIAM. [1] The appellee fell on an

(Supreme Court of Pennsylvania. May 4,

1914.) icy pavement in the city of Philadelphia, and, for the injuries sustained, he recovered a 1. TRUSTS ($ 218*)- LIABILITY OF TRUSTEE

SECURITIES CONVERTED BY ATTORNEY. judgment in the court below, the jury having

In the absence of negligence on the part of found that the city had been negligent in a trustee, she is not liable for securities taken permitting the ice to remain on the pavement. and converted to his own use by her attorney, This finding was justified by the testimony of merely because the securities were not such inseveral witnesses, who stated that the ice-vestments of trust funds as are authorized by from one to three inches in thickness-had

[Ed. Note. For other cases, see Trusts, Cent. been on the pavement for a week or ten days Dig. $$ 310–313; Dec. Dig. § 218.*] prior to the accident. It appeared that the 2. TRUSTS ($ 217*)—BREACH OF TRUST—UNAUplaintiff had testified, in his deposition taken THORIZED INVESTMENTS. some time before the trial, in view of his While the investment of trust funds in advanced age, that when he passed over the securities not expressly authorized by statute pavement at 3 o'clock on the afternoon of may render the trustee liable for loss from de

preciation, it is not a breach of trust. the day he fell the ice was soft, and that

[Ed. Note. For other cases, see Trusts, Cent. when he returned, 242 hours later, the pave- Dig. SS 301-304, 306-309; Dec. Dig. $ 217.*]

law.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

3. TRUSTS (8 234*) – TRUSTEE — DUTIES AND | been negligent in affording her attorney an LIABILITIES.

opportunity to appropriate the securities, but A trustee is not an insurer of trust funds against the possibility of loss, but is merely re- it is rested entirely on the ground that the quired to exercise good faith and reasonable bonds taken were not investments that a diligence.

trustee is authorized to make, and the single [Ed. Note.-For other cases, see Trusts, Cent. question presented by the appeal of the execuDig. 88 340–342; Dec. Dig. § 234.*]

tors of the will of the trustee is whether a 4. TRUSTS (§ 234*)—LIABILITY OF TRUSTEE, trustee is liable for securities taken by her CONVERSION BY ATTORNEY-KNOWLEDGE.

That a trustee three years before her death attorney at law and converted to his own use knew that certain bonds had been extracted where negligence has not been established, by her attorney from the box in which the and merely because the securities in question trust securities were kept did not charge her were not such investments of trust funds as with negligence rendering her liable for subsequently trusting him with trust funds which were authorized by law. The investments by he converted to his own use, where the circum- the trustee, which were the subject of dispute stance of his possession of the bonds was not and investigation, are carefully arranged and such as to excite her suspicion.

classified in the admirable report of the audi[Ed. Note. For other cases, see Trusts, Cent. tor, and his findings of fact and conclusions Dig. $$ 340–342; Dec. Dig. § 234.*]

of law are clearly and concisely stated. It Appeal from Orphans' Court, Chester appears by his findings, which rest on undisCounty.

puted testimony, that the trustee had the In the matter of the Estate of William fullest confidence in her attorney, and that Penn Darlington, deceased. From a decree she had ample reason for her confidence. dismissing exceptions to report of audit, Al- She made inquiries concerning him from the fred D. Sharpless and another, executors of most reliable sources before retaining him, Alice P. D. Derrich, deceased, and also the and for many years he represented her with Provident Life & Trust Company of Phil- entire fidelity. He was an attorney at law of adelphia, succeeding executor and trustee un- the highest standing in his profession, and der the will of William Penn Darlington, de his reputation for honesty and financial receased, separately appeal. On appeal by the sponsibility in the community where he lived executors of Alice P. D. Derrich, judgment was never questioned during the life of the reversed. Appeal by the trust company dis- trustee. For ten years he had a key to the missed.

box in which the trust securities were kept Argued before FELL, C. J., and BROWN, in a bank, and to a box in the same place MESTREZAT, STEWART, and MOSCHZIS- where the trustee's individual securities were KER, JJ.

kept. There was nothing in his conduct in

the community to put her on guard, and nothArthur P. Reid, of West Chester, for Der-ing in his relations with her in the managerick's executors. George B. Johnson, of West ment of the estate which could excite any Chester, and Townsend, Elliott & Townsend, suspicion, except possibly one matter which of Philadelphia, for Darlington's trustee.

occurred in the latter part of her adminis

tration of the trust, to which reference will FELL, C. J. Both appeals are from a de- be made in considering the appeal of the cree of the orphans' court affirming the re-Provident Life & Trust Company, succeeding port of an auditor of the account of a testa- trustee. mentary trustee filed by her executors.

The surcharge made by the auditor is basCredit was asked by the accountants: First, ed on the proposition that, since a trustee for the market value of securities of the trust who makes investments in securities other estate that had been taken by the attorney at than those authorized by the act of assembly law of the trustee from her safe deposit box must account for the principal invested, unin a bank and converted to his own use; less relieved from liability by the acceptance and, second, for the amount of a mortgage of such securities by the cestui que trust, collected by him and for moneys intrusted to it follows the securities are, as to the estate, him for investment in real estate securities, a nullity and, when rejected, are to be treatwhich he appropriated. The securities taken ed as held by a trustee as security to himself were bonds of railroad, gas, electric, and wa- for the repayment to the trust estate of the ter companies in which the moneys of the moneys invested in them, and that, if the seestate had been invested. Credit was refus-curities are lost, although without fault on ed by the auditor for the loss of the securities his part, the loss must be borne by him. His because they represented investments that a conclusion is thus stated: trustee is not authorized by law to make,

“The liability for the moneys so invested, and credit was allowed for the money collect- at the time the investment was made, can

having been once fastened upon the trustee ed on the mortgage and for the loss of money not be discharged by anything that might hapintrusted to the attorney for investment in pen to such securities." mortgages.

This conclusion was not accepted as correct [1] The surcharge of the accountants was by the learned judge of the orphans' court, not based on a finding that the trustee had who inclined to the view that a trustee who

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

is unable to produce securities because of no negligence upon the part of the trustee in their loss, for which he is not answerable, trusting her attorney is erroneous, because should suffer only to an extent necessary to some three years before her death she knew make up any deficiency occasioned by a fail- the bonds of a gas and electric company had ure of the securities to realize on the market been taken from the box in which the trust the amount invested in them. He, however, securities were kept. The evidence in relain order to avoid delay and to afford a tion to these bonds was that the trustee wrote speedy determination of a question which her attorney that on a visit to the box for could not be finally decided except on appeal the purpose of cutting off coupons she did to this court, affirmed the report of the au- not find these bonds, and that she presumed ditor.

that they were in his keeping. Interest was The accountants are not asking relief from paid upon them until her death. That this liability for losses by depreciation in value circumstance did not, in fact, excite her susof securities not authorized by law which picion or create distrust is conclusively shown were purchased with the funds of the trust by the fact that she continued to give him the estate. They voluntarily proved the present means of access to the box in which her permarket value of the securities and admitted sonal securities were kept in the bank. That a surcharge of all losses by reason of depre- it was not ground for suspicion appears from ciation. They did not ask credit for loss the nature of the services he performed as in value through depreciation, but for the her attorney. The general management of loss of the securities themselves.

the trust was not delegated by the trustee to Under the finding of the auditor that the her attorney, and he represented her in legal trustee was not in fault in trusting her at- matters only. She kept her own accounts, torney, we think the credit claimed should collected the income, had full charge of the have been allowed.

estate, and his services were as her attorney [2] Where a trustee mingles the money of at law. The trust estate consisted of 79 origthe trust estate with his own, or invests it inal investments made by the decedent, and in his own name, it may be well held that the 46 reinvestments made by the trustee. The use of the money was for himself, not for original securities were bonds, stocks, and the estate, and, when he is called to account, Western farm mortgages, as to many of the only answer he may be permitted to make which there was default in payment of interis the production of the funds. This is be- est and principal. When the professional cause he has committed a breach of the trust. services of an attorney were required in colThe law, however, does not forbid or make lecting mortgages, or in attending to securiunlawful an investment in securities not of a ties issued by companies that were in proclass expressly authorized by the acts of as-cess of liquidation or reorganization, it was sembly. Where such an investment is made usual and proper that the securities should for the trust estate there is not a breach of be taken to the attorney's office. The paytrust, although there may be liability for loss ment of moneys to the attorney for investby reason of depreciation. The securities in ment in specific loans on mortgage securities, question were purchased for, and held by and as showu by her accounts, were made as such in the name of, the trust estate, and there payments are usually made. The conclusion was not a breach of trust in making the in- of the auditor that for these losses the trusvestments.

tee should not be held liable was confirmed [3] Since they were accounted for at their by the orphans' court, and we find no reason depreciated market value, there was no for setting it aside. On the subject of the ground for a surcharge because of the ille continuance of trust in her attorney, after gality of the investment. The only charge she had observed that two bonds were not in is that they were not safely kept by the trus- her box, the auditor reported: tees, and this charge was not sustained by "But there is no evidence produced that the auditor. A trustee is not an insurer of would bring a suspicion home to her, and she

evidently did not suspect him of doing anytrust funds against the possibility of loss, thing wrong in this instance, since she trusted and all that is required of him is good faith him fully afterwards, and for this act, which and reasonable diligence. Adams' Estate, presumably was satisfactorily explained to her, 221 Pa. 77, 70 Atl. 436, 128 Am. St. Rep. 727, it does not seem proper to hold that she had

such knowledge of his misconduct as should 15 Ann. Cas. 518.

have put her on her guard and caused her to [4] The appeal of the Provident Life & withdraw from him the confidence and trust she Trust Company, succeeding trustee, is based had in him." on the refusal of the auditor to surcharge The appeal of Alfred D. Sharpless and the accountants with the amount of a mort-William P. Sharpless is sustained, and the gage collected by her attorney and the loss decree appealed from by them is reversed, of moneys of the trust estate given by the and it is directed that their account be contrustee to him for investment in mortgages firmed. The appeal of the Provident Life & on real estate. The appellant's contention is Trust Company is dismissed. The costs on that the finding by the auditor that there was both appeals to be paid by the estate.

(245 Pa, 224)

upon wagers or bets that the market value of DAVIS v. FLESHMAN et al.

certain stocks would rise or fall as evidenced (Supreme Court of Pennsylvania. May 4, by quotations from the New York Stock Ex1914.)

change. The business did not contemplate 1. GAMING ($ 28*) RECOVERY FROM STAKE- the purchase or sale of shares of stock, but HOLDER-RIGHT.

A recovery may be had from the stake was only a dealing in differences or fluctuaholder under å gambling contract, where the tions in the prices of stocks. The firm would stake has not actually been paid over to the receive deposits of money as a stake or sewinner, though the contingency upon which curity for the payment of the difference bethe bet turns has happened.

tween the selling price of the stock on one [Ed. Note.-For other cases, see, Gaming, day and the selling price of the same stock Cent. Dig. $$ 62-67; Dec. Dig. § 28.*]

on another day. The business was closed out 2. GAMING ($ 25*) - WAGERING CONTRACTS — REMEDIES.

on November 28, 1904. Since the 22d day of The law will not aid the winner in a wag- October, 1904, the plaintiff deposited with ering contract to recover from the loser the the defendants at various times certain sums amount of the stake, or assist the loser to recover the amount of the bet after the transac- of money as a stake or security upon the bet tion has been closed.

or wager of the fluctuations of certain speci[Ed. Note. For other cases, see Gaming, fied stocks, aggregating $1,860, which is now Cent. Dig. 88 51-56; Dec. Dig. $ 25.*]

sought to be recovered in this action. An af3. GAMING ($ 49*) — WAGERING CONTRACT fidavit of defense was filed denying the liaACTION TO RECOVER STAKE - BURDEN OF bility of the defendants for the whole or PROOF.

In an action for the amount of a stake de- any part of the sum claimed by the plainposited by plaintiff with the other party to a tiff. A rule for judgment was taken which wagering contract, the burden is on plaintiff to was discharged by the court below. An apshow that when he demanded the return of the stake the contingent event which was to deter- peal was taken to this court, and the judg. mine the bet had not taken place.

ment of the court below was affirmed. Davis [Ed. Note. For other cases, see Gaming, v. Fleshman, 232 Pa. 409, 81 Atl. 412. In Cent. Dig. 88 100_102; Dec. Dig. § 49.*] the opinion we said, inter alia: 4. GAMING (8 50*) - WAGERING CONTRACT - “Whether this is a case where the evidence ACTION TO RECOVER STAKE-NONSUIT. will show that the illegal gambling transactions

Where, in an action to recover money de- were closed and the accounts stated between the posited by plaintiff with defendant as security parties, and where the original deposits still for the payment of wagers, it appeared that remain with the broker so identified that they defendant operated a "bucket shop” and ac- can be recovered back; or, an instance where cepted bets from plaintiff on the fluctuations of the plaintiff is endeavoring to reclaim losses the stock market, that plaintiff deposited such paid on illegal gambling transactions, which the money as security for payments of losses, and law will not aid him to recover; or, one where that on the day before defendant failed plaintiff the plaintiff dealt with the defendants as prinordered his transactions closed and demanded cipals, and where the conduct of the parties his profits, but the evidence did not show with demonstrates that as between themselves they certainty that the transactions were open, un- treated the matter as closed, settled, and ended, determined, and unexecuted when plaintiff or- and where, all being sui juris, the law will look dered them closed, or that any sum then re- at the plaintiff as one who has paid his bet, mained in defendant's hands dependent on the the loss from which he will not be assisted to fluctuations of the market, the court properly recover cannot be satisfactorily ascertained granted a nonsuit.

from the information contained in the stateEd. Note. For other cases, see Gaming, ment of claim and the affidavits of defense." Cent. Dig. $$ 103-107; Dec. Dig. $ 50.*]

On the subsequent trial of the cause, the Appeal from Court of Common Pleas, Phil- learned court below granted a nonsuit which adelphia County.

it subsequently refused to take off, and the Assumpsit by Joseph A. Davis against plaintiff has taken this appeal. James B. Fleshman and another, trading as [1] We have no quarrel with the doctrine J. B. Fleshman & Company, to recover a of the cases cited by the appellant. Since the stake deposited with defendants in a gam- decision in McAllister v. Hoffman, 16 Serg. bling transaction. From an order refusing to & R. 147, 16 Am. Dec. 556, decided more than take off nonsuit, plaintiff appeals. Affirmed. three-quarters of a century ago, it has been

The facts appear in the opinion of the Su- the settled law of this state that a recovery preme Court and in Davis v. Fleshman, 232 may be had from a stakeholder even though Pa. 409, 81 Atl. 412. The trial judge enter turns has happened, if the stake has not ac

the contingent event upon which the bet ed a nonsuit, which the court in banc subse- tually been paid over to the winner. Before quently refused to take off.

actual payment the gambler may repent and Argued before BROWN, MESTREZAT, POTTER, ELKIN, and MOSCHZISKER, JJ. demand of the stakeholder the repayment of

his deposit. The law regards the transaction Trevor T. Matthews, of Philadelphia, for as illegal and void, and the deposit in the appellant. B. F. Pepper and G. W. Pepper, hands of the stakeholder is still the money both of Philadelphia, for appellees.

of the gambler. Hence he may maintain an

action to recover it before it passes into the MESTREZAT, J. In 1904 the defendants hands of the other party to the gambling were engaged in the business of gambling transaction. The authorities cited by the

*For other cases see samo topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

learned counsel for the appellant declare this, by the defendants, and the evidence does not to be the law of this state, and we know of support the plaintiff's contention. At all no decision of this court in conflict with it. events, the evidence is so uncertain that a

[2] It is equally well settled in this juris verdict finding such to be the fact could not diction that all mere wagering contracts are be sustained. If the bets were against the illegitimate transactions which the law de- plaintiff, the deposit, automatically, went into clares void and which will not be enforced at the hands of the defendants as winners. In the instance of either party to the contract. the absence of evidence to the contrary, it It will not aid the winner to recover from the must be assumed that the successive amounts loser the amount of the stake, and it will were deposited with the defendants because not give assistance to the loser to recover each prior deposit went to the defendants as back the amount of the bet after the trans- winners; each transaction being closed and action has been closed. It will leave the par- followed by its successor. The evidence does ties as it finds them. The law will not at- not, therefore, clearly show any sum remaintempt to settle disputes between gamblers by ing in the hands of the defendants dependent enforcing their alleged rights arising out of upon the fluctuations of the market in favor the illegal transaction.

of the plaintiff which was necessary to en[3, 4] This was not a case of marginal deal- able the plaintiff to recover in this action. ings in which a broker purchased and sold This is not an action brought by the loser stocks for his customer. It is not pretended in a gambling transaction against a stakethat such was the purpose of the contract holder to recover the amount of the deposit entered into between the plaintiff and the de- before the transaction is closed and the fendants. The latter carried on what is amount paid to the winner. The defendants known as a “bucket shop,” in which the real were not stakeholders of the funds deposited transaction was a daily settlement of differ- with them in the sense which would permit ences in the fluctuations of the prices of a recovery by the loser in an undetermined stocks on the New York Stock Exchange. No or unexecuted gambling transaction. The stocks were purchased or sold by the defend- plaintiff and defendants were both parties to ants for or on account of customers. This the illegal contract. The money deposited by was well known by the plaintiff. The plain the plaintiff with the defendants was a watiff deposited with the defendants a certain ger upon the fiuctuations of the prices of cersum of money as a wager or bet that a cer- tain specified stocks. This deposit was made tain number of shares of a particular stock with the defendants to secure them in their would advance. if the stock did so advance, winnings. They could have trusted the the plaintiff was the winner. If, however, plaintiff to pay his debt if he lost but they the price of the stock declined, the defend did not intend to take any such chance. ants won and held the amount of the de- They therefore made themselves secure by posit. During the whole period of the trans- requiring the deposit. When the bet was action involved in this case the plaintiff won by the defendants, it automatically passmade the deposits or series of bets upon the ed to and went into the possession of the devarious stocks from time to time; the fendants. The transaction was then closed, amount aggregating, as already observed, $1,- and the defendants no longer held the deposit 860. It appears that in six of the transac-awaiting the happening of the contingency tions, in which the aggregate payments were which determined their right to the deposit. $220, the movement of the market was in They were not stakeholders who were disinfavor of the plaintiff. He ordered the trans- terested in the result of the bet and who held action closed and made a demand for his prof- the fund for the successful party to the waits on November 28, 1904; but the defendant gering contract. They were parties to the ilfirm failed the following day, and he was un- legal transaction and held the deposit as winable to collect the amount of his winnings. ners of the bet. This action therefore was As to whether the other bets resulted favor- brought by one party against the other party ably to the plaintiff the evidence does not to a gambling transaction which the law dewith certainty disclose. Uncertainty as to clares void and which it will not enforce in this and

and other material matters exists aid of either party. throughout the case. The evidence on the The judgment is affirmed. trial of the cause did not clear up the uncertainty which we held to exist in the

(245 Pa. 406) pleadings when the case was here before, THIEL v. CITY OF PHILADELPHIA et al. and we declined to enter judgment for want

(Supreme Court of Pennsylvania. May 23, of a sufficient affidavit of defense. The bur

1914.) den was upon the plaintiff to show, as alleg

1. MUNICIPAL CORPORATIONS (8 995*)-PAYed in his statement, that the several trans

MENT OF SALARIES-INJUNCTION-WANT OF actions were open, undetermined, and unexe APPROPRIATION. cuted on November 28, 1904, and that the

City officials will be enjoined at the suit of contingent event which was to determine the rendered under act of July 22, 1913 (P. L. 879),

a taxpayer from paying salaries for services bet had never taken place. This is denied creating a division of housing and sanitation in

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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