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of St. Michael the Archangel. From a judy-, by the charter, is entitled to the franment for relator, defendant appeals. Re- chises and privileges conferred by the charversed.

ter. The trial judge directed a verdict in Argued before FELL, C. J., and BROWN, favor of "the body known as the Greek CathMESTREZAT, POTTER, and ELKIN, JJ. olic Church of St. Michael the Archangel,"

the president of which at the time the writ Henry M. Stevenson, of Philadelphia, for

was issued was Maxim Szkodosky, and the appellant. Henry J. Scott and Anthony A. secretary of which was Wasyl Matolicz. Hirst, both of Philadelphia, for appellee. Counsel for respondent made a verbal re

quest for binding instructions in its favor, POTTER, J. This was an action of quo which was refused, and the jury rendered a warranto brought against the Greek Catholic verdict in accordance with the instructions Church of St. Michael the Archangel. In of the trial judge.

In of the trial judge. Motions for a new trial the information for the writ, the Attorney and for judgment n. 0. v. were dismissed, General suggested the incorporation of de and judgment was entered upon the verdict. fendant that the purposes for which the Defendant has appealed. corporation was formed were "to establish The record shows the rather anomalous a congregation and church for religious pub- situation of a judgment in favor of defendlic worship in accordance with the ritual of ant, and an appeal by defendant. The record the Greek Catholic religion and to provide is in a very unsatisfactory condition. The for members and their families in cases of assignments of error are all defective. The sickness and death"; that, "on the strength writ of quo warranto is not printed, and it of the corporate powers conferred by the is not clear from the copy of the informacharter, two separate and distinct corporate tion, and the docket entries what defendants bodies were organized and brought into ex- were named in it. Both in the docket entries istence, one of them the Greek Catholic and in the information, as well as in the verChurch of St. Michael the Archangel, or- dict, the title of the corporation appears to be ganized for the purpose of establishing and incorrectly given, as the "Greek Catholic maintaining a church for the conduct of re- Church of St. Michael

of St. Michael the Archangel." ligious public worship, and the other of The corporate title as it appears in the charthem the Greek Catholic Church Brotherhood ter contains the Russian name in addition of St. Michael the Archangel, organized for to the English translation. The correct the purpose of conducting a beneficial socie- wording of this seems to be “Grecko Katoty for the relief of members and their fami- licki Cerkovno Bractwo Sv. Michaela Archlies in case of sickness or death.” It was istratija,” which being translated is the further suggested that the formation and "Greek Catholic Church Brotherhood of St. existence of two separate and distinct cor- Michael the Archangel." porate bodies under color of the same char Counsel for the commonwealth appears to ter was without warrant of law, and that, have waived the right to insist on a forby reason of the facts stated, the corporate feiture of the charter, and judgment of ousrights, powers, privileges, and franchises of ter, by entering into an agreement that the the corporation had been forfeited and be- trial judge should determine merely the come null and void. The defendants named question of the respective rights to the charin the information were served with the writ ter, of the two contending organizations, the or accepted service, and appearances were congregation and the brotherhood. 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 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

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 inThe real question at issue would seem to corporated body. have been whether the charter was valid, or The twenty-first, twenty-second, twentywhether there has been a misuse of the third, and twenty-fifth assignments of error rights and privileges granted therein. But, are sustained. The judgment of the court no such question was decided. Under the below is reversed, and judgment is here enagreement of counsel, the trial judge under-tered for the respondent the Greek Cathotook to say whether the charter was the lic Church of St. Michael the Archangel property of the "brotherhood," set forth in (Grecko Katolicki Cerkovno Bractwo Sv. the information as the “Greek Catholic Michaela Archistratija), of which, when Church Brotherhood of St. Michael the Arch- the writ was issued, Stefan Karpiak was angel," or was the property of the church president, and Stefan Petrikowitz was seccongregation known as the “Greek Catholic retary. Church of St. Michael the Archangel." We can find nothing in the record to jus

(245 Pa. 422) tify the finding that the "congregation,” as FEISER V. PHILADELPHIA & R. RY. CO. against the “brotherhood," was entitled

(Supreme Court of Pennsylvania. May 22, to be regarded as the owner of the charter.

1914.) The members of the brotherhood obtained CARRIERS ($ 320*)-INJURY TO PASSENGERthe charter in 1897, and used it and worked NEGLIGENCE-QUESTION FOR JURY. under it, beyond question for nine years, or

In a passenger's action for injuries from until 1906. There is no pretense that the being thrown beneath the train which he was

attempting to board, evidence for plaintiff held church organization here in question was af- sufficient to go to the jury on the question of fected prior to 1906. Nor does it appear that defendant's negligence. the congregation acquired in any proper or le [Ed. Note. For other cases, see Carriers, gal way the corporate rights which had Cent. Dig. 88 1118, 1126, 1149, 1153, 1160, 1167, been bestowed upon the brotherhood, some Dec. Dig. § 320.*]

1179, 1190, 1217, 1233, 1244, 1248, 1315-1325; nine years before the church congregation came into existence.

Appeal form Court of Common Pleas, PhilaThe confusion seems to be due in part to delphia County. the failure to insert the word “brotherhood" Trespass by Charles J. Feiser against the in the English translation of the corporate Philadelphia & Reading Railway Company name.

for personal injuries. From judgment for Whether or not the inclusion in a charter, J plaintiff, defendant appeals. Afirmed.

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

Argued before FELI., 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.

by an employé of the defendant company

when the time had arrived for its departure ELKIN, J. Appellant contended in the at 2:15 a. m. He testifies, and this testimony court below, and contends here, that there was must be accepted as true because undisputed, not sufficient evidence of negligence in the that he had ample time to get aboard the train case at bar to submit to the jury, and that it after he was notified, and although he went was error not to direct a verdict for defend to the toilet room, when he returned, the ant as requested at the trial. In the printed gate to the train shed was open, the sign argument learned counsel for appellant states above it gave notice that it was the train he his position as follows:

desired to take, and he walked directly along "It was the duty of the plaintiff to prove the platform to one of the coaches, took hold that some employé of the defendant company in of the rail in the usual way of boarding a charge of the train saw the plaintiff attempting to broard the train or was in a position where car, stepped upon the first step, when the train he could have seen him. If the time for the "buckled" or "jerked” in such a violent mandeparture of the train had come before the ner as to throw him under the wheel. plaintiff approached it and the signal had been

The reasonable inference to be drawn from given to start it and the employés had gotten this testimony is that the train was standing upon the train, then there was no duty upon them to stop it and hold the train until the still when he attempted to board it, and that plaintiff could get on board."

it was started with such a sudden jerk before One answer to this argument is that there he had time to enter the car and reach a is no evidence that the signal to start the place of safety as to throw him off and thus train had been given, or to show what posi- cause the very severe injuries for which he tion the employés were in when plaintiff seeks to secure damages in this action. There stepped on the platform of the car. It is ar- is no evidence to show that he attempted to gued that there was no testimony to show board a moving train, or that he was neglithat the train was started before schedule gent in this regard. The contention of aptime, or that any employé saw the plaintiff pellant is that there is no evidence to indiapproaching for the purpose of boarding the cate that any employé in charge of the train train, or to indicate that he was an intend saw him, or could have seen him by the exering passenger. This position, which is very cise of reasonable care. The evidence does strongly pressed in the argument, has made not show that either the conductor or brakeit necessary to carefully examine all the facts man actually saw him; but, taking all the and circumstances disclosed by the record for facts and circumstances into consideration, the purpose of determining whether there we cannot say as a matter of law that the was sufficient testimony to carry the case to employés could not bave seen him if they had the jury. Without offering any testimony, exercised reasonable care, or that they had counsel for defendant at the conclusion of no duty to perform in connection with the plaintiff's case asked for binding instructions. safety of this intending passenger. The notiUnder these circumstances, all the facts stat- fication in the station that his train was ed by the witnesses produced by the plaintiff, ready, the open gate and the sign above it, and the inferences to be drawn therefrom, and the train standing on the tracks along must be accepted as established. This means side of the platform, were invitations to that the facts testified to are undisputed and plaintiff to take that train, and everything that it is the province of the jury to draw the he did indicated that he was an intending inferences that may properly arise under passenger. Under these circumstances, our such a state of facts. The precise question conclusion is that it was for the jury to say for decision here is whether, giving to the un- whether the employés had negligently started disputed facts and the inferences to be drawn the train without giving plaintiff an opportherefrom their due weight, there was suffi- tunity to enter the car in safety. cient evidence to warrant a finding by the The fourth assignment of error relates to jury that the train had been negligently start the instructions of the trial judge on the ed while the plaintiff, an intending passenger, question of the measure of damages. While was attempting to board it. We have con- these instructions might have gone into the cluded that the evidence was sufficient to sus question more fully, we cannot find anything tain the negligence charged in the statement therein contained which can be said to be of claim, and that the learned trial judge clearly erroneous. Indeed, the charge as a would not have been warranted in taking the whole was full, fair, and impartial, and as case from the jury. To have done so would we view it appellant has no just ground of have required the trial judge to declare as a complaint about the manner in which the matter of law that the defendant was not learned trial judge submitted the case to the guilty of the negligence charged, and this un- jury. der the evidence would have been error. It Judgment affirmed.

(245 Pa. 443)

adelphia & Reading Railway Company, while HOGARTY V. PHILADELPHIA & R. working on a freight train, met with an acciRY. CO.

dent which caused him to lose his right arm. (Supreme Court of Pennsylvania. May 22, The plaintiff charged in his declaration that 1914.)

the casualty was due to the negligent con1. COMMERCE (8 8*)-FEDERAL EMPLOYERS' struction and maintenance of the defendant's LIABILITY ACT-APPLICATION.

The federal Employers' Liability Act of road. The trial court first gave binding inApril 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. structions for the defendant, and then enSt. Supp. 1911, p. 1322), supersedes the state tered judgment in its favor. The plaintiff laws on all matters within its scope, and con- has appealed. trols cases of injuries to employés engaged in interstate commerce on interstate railroads.

The uncontradicted evidence was sufficient [Ed. Note.-For other cases, see Commerce, to go to the jury on all the issues usually inCent. Dig. $ 5; Dec. Dig. $ 8.*]

volved in a case of this character, but the 2. MASTER AND SERVANT (8 87*)-FEDERAL defendant proved that the plaintiff had ac

EMPLOYERS? LIABILITY ACT-APPLICATION. cepted benefits as a member of its relief asability Act of April 22, 1908, c. 149, 35 Stat. sociation, and contended that this was a bar 65 (Ů. 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; Þec. Dig. § 87.*1 railroads while engaged in interstate com3. MASTER AND SERVANT (§ 264*)-INJURY TO trial that this accident happened in the

merce; and it was formally agreed at the -' LIABILITY ACT.

course of, and while the plaintiff and defendWhere, in an employé's action for injuries, ant were both "engaged in, interstate complaintiff does not expressly plead the federal Employers Liability Act of April 22, 1908, c. nierce.” To the position thus taken, the de149, 35 Stat. 65 (Ư. S. Comp. St. Supp. 1911, fendant replied: (1) That the suit had been p. 1322), proof of a case under such act is not brought at common law, and therefore the at such variance with the pleading as will en federal statute had no application; (2) that, title defendant to binding instructions in his favor.

if this contention was not correct, then, the [Ed. Note. For other cases, see Master and plaintiff having pleaded at common law and Servant, Cent. Dig. 88 861-876; Dec. Dig. 8 proved a case under the federal statute, there 261.*]

was a fatal departure between the allegata 4. MASTER AND SERVANT (8 100*)-INJURY TO and the probata. Finally, the plaintiff conRAILROAD EMPLOYÉ-DEFENSE ACCEPTANCE OF BENEFIT.

tends that, if he should have formally pleadIn a railroad employé's action for injuries ed the federal statute, he is entitled to amend received while engaged in interstate commerce, accordingly. Properly to adjudge the merits the federal Employers' Liability Act of April 22, 1908, c. 149, 35 Stat. 65 (Ů. S. Comp. "St. of these various contentions requires the Supp. 1911, p. 1322), providing that a common consideration of several recent United States carrier shall not exempt itself from liability Supreme Court decisions and at least one of for negligence of its employés, precluded the de- our own cases. fense that plaintiff's acceptance of benefits as a member of defendant's relief association re

[1, 2] In Second Employers' Liability Cases, leased defendant from liability.

Mondou v. R. R. Co., 223 U. S. 1, 32 Sup. Ct. [Ed. Note.-For other cases, see Master and 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44, the Servant, Cent. Dig. 88 166–170; Dec. Dig. $ court disposed of four different appeals, and 100.*]

determined many general points, among others Appeal from Court of Common Pleas, Phil-that: "(1) The United States is not a foreign adelphia County.

sovereignty as regards the several states, but Trespass by William J. Hogarty against is a concurrent and, within its jurisdiction, a the Philadelphia & Reading Railway Compa- paramount sovereign; (2) until Congress actny for personal injuries. From judgmented on the subject, the laws of the several for defendant on a directed verdict, plaintiff states determined the liability of interstate appeals. Reversed and remanded for new carriers for injuries to their employés while trial.

engaged in interstate commerce, but, ConArgued before FELL, C. J., and MESTRE-gress having acted, its action supersedes ZAT, POTTER, ELKIN, and MOSCHZIS- that of the states, so far as it covers the KER, JJ.

same subject; (3) when Congress, in the exIra J. Williams, of Philadelphia, for appel- ertion of a power confided to it by the Conlant. Wm. Clarke Mason, of Philadelphia, stitution, adopts an act, it speaks for all the for appellee.

people and all the states, and thereby estab

lishes a' policy for all, and the courts of a MOSCHZISKER, J. On February 1, 1910, state cannot refuse to enforce the act on William J. Hogarty, an employé of the Phil-1 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

policy of that state” or “on the ground of such rights as the personal representative inconvenience or confusion.” The case we of the deceased may have" under the federal are discussing involved the same federal statute. In North Carolina · Railroad vi statute which is now before us, and it express- Zachary, 232 U. S. 248, 34 Sup. Ct. 305, 58 L. ly supports the constitutionality of the very Ed. 591, the suit was by the personal repreprovision whose protection the present plain- sentative of a decedent killed while employed tiff claimed in order to meet the defense here upon the defendant road. The action was interposed. Supplementing what we have instituted in a state court, the act of Conalready quoted, the United States Supreme gress was not pleaded, and the plaintiff's Court held that for the purposes of this act declaration did not indicate that the deceased Congress had made a valid classification of was engaged in interstate service. The derailroads engaged in interstate commerce, fendant set up, “as a special defense,” that: that the provisions of the statute "supersede "At the time plaintiff's intestate was killed the laws of the state in so far as the latter he was engaged in interstate commerce, and cover the same field,” that this piece of na- fixed and regulated by the federal Employers'

that the liability of the defendant

was tional legislation must be heeded by all Liability Act.courts, that in its enforcement by state

In refusing a nonsuit, the trial court held: courts the act in question is "not to be treated

"That the action was brought under the statas a foreign statute” but as one “establishing ute of North Carolina, that the federal act had a policy for all," and, finally, that the policy no application, and that the cause was triable thus established is "as much the policy of under the statutes of the state.” Connecticut (the state from which the appeal In reversing, the United States Supreme was taken) as if the act emanated from Court ruled that "the federal act governed its own Legislature.” Three of the suits to the exclusion of the statutes of the state," there under review were commenced in Unit- citing Second Employers' Liability Cases, sued States Circuit Courts and one in a state pra. court, and in each instance the federal stat In Missouri, K. & T. R. Co. v. Wulf, 226 U. ute was formally pleaded in the plaintiff's S. 570, 33 Sup. Ct. 135, 57 L. Ed. 355, Ann. declaration; but we cite the case for the Cas. 1914B, 134, the plaintiff, in her individbroad general principles laid down, which ual capacity, commenced an action in a Cirhave since been followed and applied by cuit Court of the United States to recover the Supreme Court in reviewing other cases damages for the death of a son killed in the of like character instituted in state courts employ of the defendant company. The case and brought at common law.

was in the United States court by reason of · St. Louis, I. M. & S. R. Co. v. Hesterly, 228 diverse citizenship, and the federal statute U. S. 702, 33 Sup. Ct. 703, 57 L. Ed. 1031, was

was not pleaded. The defendant contended commenced in a state court, and recovery in its answer that the cause of action was was had by the personal representative of a “not governed by the laws of Kansas,” but by deceased employé, which included an item the federal Employers' Liability Act; wherenot allowed by the federal statute. The upon the plaintiff asked to amend and plead statute was not formally pleaded; and so the statute. The defendant objected on the far as the report shows there was nothing ground that the period of limitation had run in the plaintiff's declaration to indicate that since the cause of action accrued; but the her decedent was engaged in interstate com

court allowed the amendment. The case merce at the time of the accident. The de proceeded to trial, and judgment was entered fendant contended that the act of Congress for the plaintiff. In affirming, the United controlled, but the trial court held that it States Supreme Court said: did not apply, and the Supreme Court of the

"It is contended that the plaintiff's original state subsequently decided that the federal petition failed to state a cause of action, be

she statute was "only supplementary and the based her right of recovery upon the Kansas judgment could be upheld under the state statute, whereas her action could legally rest law.” The The United States Supreme Court re- of 1908, which requires the action to be brought

only upon the federal Employers' Liability Act versed, citing Second Employers' Liability in the name of the personal representative of Cases, supra. In St. Louis, S. F. & T. R. the deceased ; that the plaintiff's amended petiCo. v. Seale, 229 U. S. 156, 33 Sup. Ct. 651, tion * alleged an entirely new and dis57 L. Ed. 1129, the action was by the widow tinct cause of action; and that such an amendand parents of a railroad employé killed in relate back to the commencement of the action,

ment could not lawfully be allowed so as to interstate service; it was brought in a state inasmuch as the plaintiff's cause of action was court, and the federal statute was not plead-barred by the limitation of two years." ed, nor did the plaintiff's statement of claim The opinion proceeds: indicate that the deceased was engaged in

"It is true the original petition asserted a interstate commerce at the time of his injury. right of action under the laws of Kansas, withThe defendant urged that the act of Congress But the court was presumed to be cognizant of

out making reference to the act of Congress. applied and thereunder the personal represen- the enactment of the Employers' Liability Act, tative of the deceased was the only one en- and to know that with respect to the responsititled to sue; but its contention was not sus- \ it had the effect of superseding state laws up

bility of interstate carriers by railroad tained. On appeal, the United States Su-on the subject. * Therefore the pleader preme Court reversed, "without prejudice to was not required to refer to the federal act,

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