of St. Michael the Archangel. From a judg- by the charter, is entitled to the franment for relator, defendant appeals. Re-chises and privileges conferred by the charversed. Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, and ELKIN, JJ. Henry M. Stevenson, of Philadelphia, for appellant. Henry J. Scott and Anthony A. Hirst, both of Philadelphia, for appellee. ter. The trial judge directed a verdict in The record shows the rather anomalous POTTER, J. This was an action of quo warranto brought against the Greek Catholic Church of St. Michael the Archangel. In In the information for the writ, the Attorney General suggested the incorporation of defendant that the purposes for which the corporation was formed were "to establish a congregation and church for religious public worship in accordance with the ritual of the Greek Catholic religion and to provide for members and their families in cases of sickness and death"; that, "on the strength of the corporate powers conferred by the charter, two separate and distinct corporate bodies were organized and brought into existence, one of them the Greek Catholic Church of St. Michael the Archangel, organized for the purpose of establishing and maintaining a church for the conduct of religious public worship, and the other of them the Greek Catholic Church Brotherhood of St. Michael the Archangel, organized for the purpose of conducting a beneficial society for the relief of members and their families in case of sickness or death." It was further suggested that the formation and existence of two separate and distinct corporate bodies under color of the same charter was without warrant of law, and that, by reason of the facts stated, the corporate rights, powers, privileges, and franchises of the corporation had been forfeited and become null and void. The defendants named in the information were served with the writ or accepted service, and appearances were entered for them, and a rule to plead, answer, The evidence shows that certain facts in or demur was also served on them. An an- the case were undisputed. The brotherhood swer was filed by the Greek Catholic Church or beneficial society, which was the defendof St. Michael the Archangel (Grecko Kato- ant below, in the manner in which the issue licki Cerkovno Bractwo Sv. Michaela Archis- was made up, and which is the actual aptratija) by Stefan Karpiak, president, and pellant here, was organized and in existence Stefan Petrikowitz, secretary. The answer before the charter was obtained. The brothdenied that two separate and distinct cor- erhood initiated the movement for obtaining porate bodies had been organized under the a charter, and carried it out, through a comcharter and averred that only one such body, mittee of its members, and paid the expenses, the respondent, had been so organized. the attorney's fees, and costs. All members commonwealth joined issue on the matters al- of the brotherhood were members of the leged in the answer, and the case was call- church, but not all members of the church ed for trial. A large amount of testimony were members of the brotherhood. On the was taken as to the history of the church, part of appellant, it is claimed that the the brotherhood, and the corporation, and English title as it appears in the charter as to the parties who were entitled to ex- was intended to be an exact translation of the ercise the privileges and franchises of the Russian title, but that the translation of corporation. Finally the counsel on both the word "Bractwo," meaning "brotherhood," sides agreed that the court should dispose was omitted by mistake of the attorney who of the matter before it by instructing the prepared the charter. As above stated, the jury as to which of the two organizations brotherhood was already organized when claiming to to be the corporation created the charter was obtained. No organization as The Counsel for the commonwealth appears to have waived the right to insist on a forfeiture of the charter, and judgment of ouster, by entering into an agreement that the trial judge should determine merely the question of the respective rights to the charter, of the two contending organizations, the congregation and the brotherhood. a church by any of these people was averred | in its statement of purpose, of provisions until 1906, some nine years after the char- for establishing a church for religious worter in question was obtained, and there is ship, and for caring for the members and nothing to show that the church organiza- their families in case of sickness and death, tion then effected was intended to be under was the setting forth of a double purpose, the charter, which had been previously ob- and for that reason illegal, was not decided tained by the brotherhood. When that char- by the court below. Care of the sick and ter was obtained, the members of the broth- the bereaved might very well be held to be erhood worshiped at the Holy Ghost Church of the essence of true religion. And the on Passyunk avenue. In the year 1905 or avowal of such a purpose might be consid1906, there was a division in that congrega- ered as in its nature so closely allied to, and tion, and some of them, including most of so much a part of, the work of a religious the Brotherhood of St. Michael the Archan- body, as to properly fall within a statement gel, left the Holy Ghost Church, worshipping of the general purpose of such a body, in an for a time at Eighteenth and Callowhill application for a charter. But however that streets. There appears to have been some may be, upon this record as it stands, we are litigation with the congregation remaining clearly of the opinion that it was the "Greek at the Holy Ghost Church, which was set- Catholic Church Brotherhood of St. Michael tled by the latter retaining the church prop- the Archangel" which secured for its memerty and relinquishing its rights to the sum bership incorporation in 1897; and it was of $4,263.99 deposited in the Equitable Trust to that body that the charter here in quesCompany. The testimony shows that this tion was granted; and it is that body which sum of $4,200, in round figures, was paid to has worked under it ever since, and has the society, or brotherhood. The money re- rightfully exercised the powers, rights, and ceived from the Holy Ghost Church, togeth- franchises, which were granted in the charer with other sums contributed by members ter. While the members of the brotherhood of the brotherhood, and the sum of $6,000 are members of the church congregation, borrowed upon mortgage, was used to pur- yet we find nothing in the evidence to inchase the church property at Ninth and But- dicate that the congregation as such has tonwood streets. The title was taken, not ever in any lawful way succeeded to the in the complete corporate name, but in the ownership or control of the charter, which name of the "Greek Catholic Church of St. was granted to the members of the brotherMichael the Archangel." hood, and under which they became an incorporated body. The real question at issue would seem to have been whether the charter was valid, or whether there has been a misuse of the rights and privileges granted therein. But no such question was decided. Under the agreement of counsel, the trial judge undertook to say whether the charter was the property of the "brotherhood," set forth in the information as the "Greek Catholic Church Brotherhood of St. Michael the Archangel," or was the property of the church congregation known as the "Greek Catholic Church of St. Michael the Archangel." We can find nothing in the record to justify the finding that the "congregation," as against the "brotherhood," was entitled to be regarded as the owner of the charter. The members of the brotherhood obtained the charter in 1897, and used it and worked under it, beyond question for nine years, or until 1906. There is no pretense that the There is no pretense that the church organization here in question was affected prior to 1906. Nor does it appear that the congregation acquired in any proper or legal way the corporate rights which had been bestowed upon the brotherhood, some nine years before the church congregation came into existence. The confusion seems to be due in part to the failure to insert the word "brotherhood" in the English translation of the corporate The twenty-first, twenty-second, twentythird, and twenty-fifth assignments of error are sustained. The judgment of the court below is reversed, and judgment is here entered for the respondent the Greek Catholic Church of St. Michael the Archangel (Grecko Katolicki Cerkovno Bractwo Sv. Michaela Archistratija), of which, when the writ was issued, Stefan Karpiak was president, and Stefan Petrikowitz was secretary. (245 Pa. 422) FEISER v. PHILADELPHIA & R. RY. CO. CARRIERS (§ 320*)-INJURY TO PASSENGER- In a passenger's action for injuries from being thrown beneath the train which he was attempting to board, evidence for plaintiff held sufficient to go to the jury on the question of defendant's negligence. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1118, 1126, 1149, 1153, 1160, 1167, 1179, 1190, 1217, 1233, 1244, 1248, 1315-1325; Dec. Dig. § 320.*] Appeal form Court of Common Pleas, Philadelphia County. Trespass by Charles J. Feiser against the Philadelphia & Reading Railway Company for personal injuries. From judgment for Whether or not the inclusion in a charter, plaintiff, defendant appeals. Affirmed. name. *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes Argued before FELL, C. J., and BROWN, | is not disputed that the plaintiff was an inMESTREZAT, POTTER, ELKIN, STEW- tending passenger, having purchased a ticket, ART, and MOSCHZISKER, JJ. and waited at the station more than two hours after midnight to take the train in Wm. Clarke Mason, of Philadelphia, for ap-question. He fell asleep in the station while pellant. John W. Wescott, of Philadelphia, waiting for the train and was awakened for appellee. ELKIN, J. Appellant contended in the court below, and contends here, that there was not sufficient evidence of negligence in the case at bar to submit to the jury, and that it was error not to direct a verdict for defendant as requested at the trial. In the printed argument learned counsel for appellant states his position as follows: "It was the duty of the plaintiff to prove that some employé of the defendant company in charge of the train saw the plaintiff attempting to broard the train or was in a position where he could have seen him. If the time for the departure of the train had come before the plaintiff approached it and the signal had been given to start it and the employés had gotten upon the train, then there was no duty upon them to stop it and hold the train until the plaintiff could get on board." One answer to this argument is that there is no evidence that the signal to start the train had been given, or to show what position the employés were in when plaintiff stepped on the platform of the car. It is argued that there was no testimony to show that the train was started before schedule time, or that any employé saw the plaintiff approaching for the purpose of boarding the train, or to indicate that he was an intending passenger. This position, which is very strongly pressed in the argument, has made it necessary to carefully examine all the facts and circumstances disclosed by the record for the purpose of determining whether there was sufficient testimony to carry the case to the jury. Without offering any testimony, counsel for defendant at the conclusion of plaintiff's case asked for binding instructions. Under these circumstances, all the facts stated by the witnesses produced by the plaintiff, and the inferences to be drawn therefrom, must be accepted as established. This means that the facts testified to are undisputed and that it is the province of the jury to draw the inferences that may properly arise under such a state of facts. The precise question for decision here is whether, giving to the undisputed facts and the inferences to be drawn therefrom their due weight, there was sufficient evidence to warrant a finding by the jury that the train had been negligently started while the plaintiff, an intending passenger, was attempting to board it. We have conIcluded that the evidence was sufficient to sus tain the negligence charged in the statement of claim, and that the learned trial judge would not have been warranted in taking the case from the jury. To have done so would have required the trial judge to declare as a matter of law that the defendant was not guilty of the negligence charged, and this under the evidence would have been error. It by an employé of the defendant company when the time had arrived for its departure at 2:15 a. m. He testifies, and this testimony must be accepted as true because undisputed, that he had ample time to get aboard the train after he was notified, and although he went to the toilet room, when he returned, the gate to the train shed was open, the sign above it gave notice that it was the train he desired to take, and he walked directly along the platform to one of the coaches, took hold of the rail in the usual way of boarding a car, stepped upon the first step, when the train "buckled" or "jerked" in such a violent manner as to throw him under the wheel. The reasonable inference to be drawn from this testimony is that the train was standing still when he attempted to board it, and that it was started with such a sudden jerk before he had time to enter the car and reach a place of safety as to throw him off and thus cause the very severe injuries for which he seeks to secure damages in this action. There is no evidence to show that he attempted to board a moving train, or that he was negligent in this regard. The contention of appellant is that there is no evidence to indicate that any employé in charge of the train saw him, or could have seen him by the exercise of reasonable care. The evidence does not show that either the conductor or brakeman actually saw him; but, taking all the facts and circumstances into consideration, we cannot say as a matter of law that the employés could not have seen him if they had exercised reasonable care, or that they had no duty to perform in connection with the safety of this intending passenger. The notification in the station that his train was ready, the open gate and the sign above it, and the train standing on the tracks along side of the platform, were invitations to plaintiff to take that train, and everything he did indicated that he was an intending passenger. Under these circumstances, our conclusion is that it was for the jury to say whether the employés had negligently started the train without giving plaintiff an opportunity to enter the car in safety. The fourth assignment of error relates to the instructions of the trial judge on the question of the measure of damages. While these instructions might have gone into the question more fully, we cannot find anything therein contained which can be said to be clearly erroneous. Indeed, the charge as a whole was full, fair, and impartial, and as we view it appellant has no just ground of complaint about the manner in which the learned trial judge submitted the case to the jury. Judgment affirmed. (245 Pa. 443) (Supreme Court of Pennsylvania. May 22, 1. COMMERCE (§ 8*)-FEDERAL EMPLOYERS' LIABILITY ACT-APPLICATION. The federal Employers' Liability Act of April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 1911, p. 1322), supersedes the state laws on all matters within its scope, and controls cases of injuries to employés engaged in interstate commerce on interstate railroads. [Ed. Note. For other cases, see Commerce, Cent. Dig. 5; Dec. Dig. § 8.*] adelphia & Reading Railway Company, while working on a freight train, met with an accident which caused him to lose his right arm. The plaintiff charged in his declaration that the casualty was due to the negligent construction and maintenance of the defendant's road. The trial court first gave binding instructions for the defendant, and then entered judgment in its favor. The plaintiff has appealed. The uncontradicted evidence was sufficient to go to the jury on all the issues usually involved in a case of this character; but the 2. MASTER AND SERVANT (§ 87*)-FEDERAL defendant proved that the plaintiff had acEMPLOYERS' LIABILITY ACT-APPLICATION. cepted benefits as a member of its relief asThe provision of the federal Employers' Li-sociation, and contended that this was a bar ability Act of April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 1911, p. 1322), to his recovery, citing Reese v. Railroad Co., that any contract, rule, regulation, or device, 229 Pa. 340, 78 Atl. 851, and other cases. the purpose of which is to enable a common The plaintiff rejoined by formally calling atcarrier to exempt itself from liability for negligence of its employés, shall be to that extent tention to the Act of Congress of April 22, void, applies to all cases, within the scope of 1908 (35 Stat. 65, c. 149), which, inter alia, the statute, with like effect as though promul- forbids the defense in question in cases arisgated by an act of the state Legislature. [Ed. Note.-For other cases, see Master and ing from accidents happening to employés of Servant, Cent. Dig. § 138; Dec. Dig. § 87.*1 railroads while engaged in interstate commerce; and it was formally agreed at the 3. MASTER AND SERVANT (§ 264*)-INJURY TO SERVANT-VARIANCE-FEDERAL EMPLOYERS' trial that this accident happened in the LIABILITY ACT. course of, and while the plaintiff and defendant were both "engaged in, interstate commerce." To the position thus taken, the defendant replied: (1) That the suit had been brought at common law, and therefore the federal statute had no application; (2) that, if this contention was not correct, then, the plaintiff having pleaded at common law and proved a case under the federal statute, there was a fatal departure between the allegata and the probata. Finally, the plaintiff contends that, if he should have formally pleaded the federal statute, he is entitled to amend accordingly. Properly to adjudge the merits of these various contentions requires the of these various contentions consideration of several recent United States Supreme Court decisions and at least one of our own cases. Where, in an employé's action for injuries, plaintiff does not expressly plead the federal Employers' Liability Act of April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 1911, p. 1322), proof of a case under such act is not at such variance with the pleading as will entitle defendant to binding instructions in his favor. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 861-876; Dec. Dig. 8 264.*] 4. MASTER AND SERVANT (§ 100*)-INJURY TO RAILROAD EMPLOYÉ-DEFENSE-ACCEPTANCE OF BENEFIT. In a railroad employé's action for injuries received while engaged in interstate commerce, the federal Employers' Liability Act of April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 1911, p. 1322), providing that a common carrier shall not exempt itself from liability for negligence of its employés, precluded the defense that plaintiff's acceptance of benefits as a member of defendant's relief association released defendant from liability. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 166-170; Dec. Dig. § 100.*] [1, 2] In Second Employers' Liability Cases, Mondou v. R. R. Co., 223 U. S. 1, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44, the court disposed of four different appeals, and determined many general points, among others Appeal from Court of Common Pleas, Phil- that: "(1) The United States is not a foreign adelphia County. Trespass by William J. Hogarty against the Philadelphia & Reading Railway Company for personal injuries. From judgment for defendant on a directed verdict, plaintiff appeals. Reversed and remanded for new trial. Argued before FELL, C. J., and MESTREZAT, POTTER, ELKIN, and MOSCHZISKER, JJ. Ira J. Williams, of Philadelphia, for appellant. Wm. Clarke Mason, of Philadelphia, for appellee. MOSCHZISKER, J. On February 1, 1910, William J. Hogarty, an employé of the Phil sovereignty as regards the several states, but is a concurrent and, within its jurisdiction, a paramount sovereign; (2) until Congress acted on the subject, the laws of the several states determined the liability of interstate carriers for injuries to their employés while engaged in interstate commerce, but, Congress having acted, its action supersedes that of the states, so far as it covers the same subject; (3) when Congress, in the exertion of a power confided to it by the Constitution, adopts an act, it speaks for all the people and all the states, and thereby establishes a policy for all, and the courts of a state cannot refuse to enforce the act on ground that it is not in harmony with the *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes such rights as the personal representative of the deceased may have" under the federal statute. In North Carolina Railroad v. Zachary, 232 U. S. 248, 34 Sup. Ct. 305, 58 L. Ed. 591, the suit was by the personal repre upon the defendant road. The action was instituted in a state court, the act of Congress was not pleaded, and the plaintiff's declaration did not indicate that the deceased was engaged in interstate service. The defendant set up, "as a special defense," that: "At the time plaintiff's intestate was killed he was engaged in interstate commerce, and fixed and regulated by the federal Employers' that the liability of the defendant **** Liability Act." was policy of that state" or "on the ground of inconvenience or confusion." The case we are discussing involved the same federal statute which is now before us, and it expressly supports the constitutionality of the very provision whose protection the present plain-sentative of a decedent killed while employed tiff claimed in order to meet the defense here interposed. Supplementing what we have already quoted, the United States Supreme Court held that for the purposes of this act Congress had made a valid classification of railroads engaged in interstate commerce, that the provisions of the statute "supersede the laws of the state in so far as the latter cover the same field," that this piece of national legislation must be heeded by all courts, that in its enforcement by state courts the act in question is "not to be treated as a foreign statute" but as one "establishing a policy for all," and, finally, that the policy thus established is "as much the policy of Connecticut (the state from which the appeal was taken) as if the act emanated from its own Legislature." Three of the suits there under review were commenced in United States Circuit Courts and one in a state court, and in each instance the federal statute was formally pleaded in the plaintiff's declaration; but we cite the case for the broad general principles laid down, which have since been followed and applied by the Supreme Court in reviewing other cases of like character instituted in state courts and brought at common law. In refusing a nonsuit, the trial court held: "That the action was brought under the statute of North Carolina, that the federal act had no application, and that the cause was triable under the statutes of the state.' In reversing, the United States Supreme Court ruled that "the federal act governed to the exclusion of the statutes of the state," citing Second Employers' Liability Cases, supra. St. Louis, I. M. & S. R. Co. v. Hesterly, 228 U. S. 702, 33 Sup. Ct. 703, 57 L. Ed. 1031, was commenced in a state court, and recovery was had by the personal representative of a deceased employé, which included an item not allowed by the federal statute. The statute was not formally pleaded; and so far as the report shows there was nothing in the plaintiff's declaration to indicate that her decedent was engaged in interstate commerce at the time of the accident. The defendant contended that the act of Congress controlled, but the trial court held that it did not apply, and the Supreme Court of the state subsequently decided that the federal statute was "only supplementary and the judgment could be upheld under the state law." The United States Supreme Court reversed, citing Second Employers' Liability Cases, supra. In St. Louis, S. F. & T. R. Co. v. Seale, 229 U. S. 156, 33 Sup. Ct. 651, 57 L. Ed. 1129, the action was by the widow and parents of a railroad employé killed in interstate service; it was brought in a state court, and the federal statute was not plead-barred by the limitation of two years." ed, nor did the plaintiff's statement of claim indicate that the deceased was engaged in interstate commerce at the time of his injury. The defendant urged that the act of Congress applied and thereunder the personal representative of the deceased was the only one entitled to sue; but its contention was not sustained. On appeal, the United States Supreme Court reversed, "without prejudice to In Missouri, K. & T. R. Co. v. Wulf, 226 U. S. 570, 33 Sup. Ct. 135, 57 L. Ed. 355, Ann. Cas. 1914B, 134, the plaintiff, in her individual capacity, commenced an action in a Circuit Court of the United States to recover damages for the death of a son killed in the employ of the defendant company. The case was in the United States court by reason of diverse citizenship, and the federal statute was not pleaded. The defendant contended was not pleaded. in its answer that the cause of action was "not governed by the laws of Kansas," but by the federal Employers' Liability Act; whereupon the plaintiff asked to amend and plead the statute. The defendant objected on the ground that the period of limitation had run since the cause of action accrued; but the court allowed the amendment. The case proceeded to trial, and judgment was entered for the plaintiff. In affirming, the United States Supreme Court said: "It is contended that the plaintiff's original petition failed to state a cause of action, because she sued in her individual capacity and based her right of recovery upon the Kansas statute, whereas her action could legally rest only upon the federal Employers' Liability Act of 1908, which requires the action to be brought in the name of the personal representative of the deceased; that the plaintiff's amended petition * alleged an entirely new and disment could not lawfully be allowed so as to tinct cause of action; and that such an amendrelate back to the commencement of the action, inasmuch as the plaintiff's cause of action was The opinion proceeds: "It is true the original petition asserted a right of action under the laws of Kansas, without making reference to the act of Congress. But the court was presumed to be cognizant of the enactment of the Employers' Liability Act, and to know that with respect to the responsiit had the effect of superseding state laws upbility of interstate carriers by railroad on the subject. * * *Therefore the pleader was not required to refer to the federal act, |