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It is conceded for the lessees that the failure | court, to say what damages properly resulted to keep a night guard on watch did not cause from defendant's breach of its contract. the fire, but it enabled the incendiary to consúmmate his design of setting fire to the shop.

The judgment is reversed and a venire de While, therefore, it is clear that the loss was novo awarded. the direct and immediate consequence of the fire, it is equally clear that it was not the direct

(245 Pa. 479) and immediate consequence of a failure to keep

SHIFFER et al. v. HUDSON COAL CO. up a night watch. Such a loss cannot reasonably be assumed to have entered into the con- (Supreme Court of Pennsylvania. May 22, templation of the parties. The contract was

1914.) that a night guard should be employed; the 1. MINES AND MINERALS (8 70*)—MINING breach was in not having such a guard; the damage looked to in making the contract was

LEASE ACTION FOR ROYALTY QUESTION the expense of such guard and not the proba

FOR JURY. ble or possible or remote damage that might under a mining lease binding the lessee to pay

Where, in an action for the balance due occur."

a certain rental in monthly installments until So here the failure of the electric appara- the lessee believed that the amount paid for tus to give the appropriate signal may have coal not mined equaled the royalty value of enabled the invader of the house to consumo pable of being worked, the evidence left doubt

the unmined coal yet on the premises and camate his design, but it did not cause the bur- ful the question of the bona fides of the lesglary.

see's expressed opinion that it had paid such The result of the court's submission of the amount, such question was for the jury. question to the jury was a recovery by plain- Minerals, Cent. Dig. $8 192–197; Dec. Dig.

[Ed. Note. For other cases, see Mines and tiff for an act of negligence which at best $ 70.*] was a remote cause of the loss. Admitting 2. MINES AND MINERALS (8 70*)—MINING the facts to be as claimed by the plaintiff, LEASECONSTRUCTION. the learned trial judge should have held that The right given the lessee to suspend paythey did not show defendant's negligence to ment of the rental under a mining lease prohave been the proximate cause of plaintiff's ion of its proper officers, have paid for as my

viding that if the lessee should, in the opinloss, and he should have limited the damages coal as still remained in the premises unmined recoverable to those sustained by reason of and capable of being worked, it should give the breach of contract.

notice thereof, and thereupon, subject to cer

tain conditions, be relieved from payment of [5] The appellee mistakenly assumes in the further rental, was dependent upon the exerbrief submitted that this point was otherwise cise of due diligence by the lessee. decided in the former appeal reported in 240 [Ed. Note. For other cases, see Mines and Pa. 571, 88 Atl. 6, which was from a judg- Minerals, Cent. Dig. $8 192–197; Dec. Dig.

§ 70.*] ment sustaining a demurrer to plaintiff's declaration. The learned trial judge in sus- 3. ESTOPPEL ($ 90*)—MINING LEASE-RECOV

ERY OF ROYALTY. taining the demurrer had filed no opinion, and

That the lessors failed to object to the we were left to conjecture his reasons. The suspension of payment of rental under 'a mincontention of appellee on argument was that ing lease, pursuant to a provision authorizing because the declaration averred a contract of the opinion that the rental paid on unmined

such suspension whenever the lessee should be and a breach of duty by defendant thereun- coal equaled the coal yet unmined, did not der, notwithstanding it further averred a estop representatives of the lessors, after the tort through negligence, plaintiff's exclusive death of the lessors, from recovering the un

paid rental, on the ground that the lessee's exremedy was by action in assumpsit. We de pressed opinion was not bona fide and that clined to accept this view, holding that the lessee did not exercise due diligence in the matdeclaration was sufficient to call for a plea, ter, where it did not appear that it had reand we accordingly reversed, with leave to lied on the conduct of the lessors. plead. Whether the tort alleged was in itself Cent. Dig. ss 242-244, 248–256; Dec. Dig.

[Ed. Note. For other cases, see Estoppel, actionable or otherwise was not the subject of 90.*] contention, nor was a decision of the question 4. MINES AND MINERALS (8 70*)—MINING called for. Notwithstanding its insufficiency, LEASE-CONSTRUCTION. a right would still remain in the plaintiff,

The rental recoverable under a mining under the declaration in the case, to recover certain annual rental in monthly installments

lease providing that the lessee should pay a on account of the admitted breach of the was not limited to the royalty value of the contract.

minable coal on the leased premises, though the “The weight of authority, says Bell, J., in lease also contained a provision, of which the Livingston v. Cox, 6 Pa. 360, has put it be- lessee failed to properly 'avail itself, that, if yond question that, though the action may be in the lessee's opinion it should have paid as in form as for a tort, yet if the subject of it be much for coal not yet mined as still remained based on contract, the suit will be attended by unmined, it should, subject to certain condiall the incidents of an action ex contractu.'

tions, have a right to suspend payment of ren

tal. [6] For the reasons given we sustain the [Ed. Note.

For other cases, see Mines and second assignment of error, without, however, Minerals, Cent. Dig. $$ 192–197; Dec. Dig. limiting the plaintiff's right of compensation $ 70.*] to the amount paid by him for the wiring of Appeal from Court of Common Pleas, Luhis house as there stated. It will be for the zerne County. jury, under proper instructions from the Assumpsit by Frank E. Shiffer, trustee of the estate of Thomas Stem, deceased, and, in monthly installments of $400 each, the pay. others, against the Hudson Coal Company, ment of which rentals shall entitle the second for rents and royalties due under a coal lease. demised premises 1,250 tons of coal of larger

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

( From judgment for plaintiffs, defendant ap-sizes than pea coal'in each month of each and peals. Affirmed.

every year during the continuance of this

lease." And then it allows the lessee to make The facts appear in the following opinion up in any subsequent year the deficit between of Fuller, P. J., sur defendant's motion for the payment of minimum rental and actual a new trial:

mining in any year, without interruption of

minimum, by the provision “that if in any one This action of assumpsit was brought June year such rentals be paid and the total quan9, 1908, by the legal representatives of the tity of such coal mined in that year shall be original' lessors in a certain lease of coal, less than the total quantity which such payagainst the assignee of the original lessee, to ment of rentals should entitle the second parrecover certain coal rents and royalties which ty (lessee) to mine as aforesaid, the deficit may accrued after the assignment. The lease was be mined and removed in any subsequent year made in 1894 by Lacoe, Shiffer, Ford, and during the continuance of this lease, without Stem, to the Langcliffe Coal Company, Lim- further payment, but this provision shall in no ited, of all the coal under certain land in Lack- wise affect or interrupt the monthly payments awanna county, “to have and to hold until all of fixed rental as above agreed upon." But the merchantable coal available by careful min- nowhere does the contract disclose any intening should be mined out.” The lessee agreed to tion to absolve the lessee from payment of the pay during the continuance of the lease the minimum rental, except in the twelfth coveannual rental of $4,800, in monthly install- nant, viz.: “If at any time or times, the secments of $400, for which payment it was en ond party shall in the opinion of its proper . titled to mine each month 1,250 tons of coal officers, have paid for as much coal which they above the size of pea. In addition to this have not mined as still remains in the premminimum rental, the lessee also agreed to pay ises unmined and capable of being worked unat the same time for all coal above the size der this agreement, they shall give notice thereof pea actually mined in excess of 1,250 tons, of to the first parties, and thereupon each parat a royalty of '32 cents per ton, for all pea ty shall choose a competent and disinterested coal actually mined, at a royalty of 20 cents mining engineer, who shall select a third comper ton, and for all buckwheat coal actually i petent and disinterested mining engineer, and mined, at a royalty of 10 cents per ton; the the three so chosen shall make all necessary different sizes being determined by the mesh examination of the premises and receive such through which the coal was screened. Be- other proper evidence and tests as shall be tween 1894 and 1897 the lessee paid mini- sufficient to determine the amount of coal unmum rental amounting to $13,600, and mined mined therein, taking into account such coal coal of all sizes amounting to $4,600, thus leav- as is required to be mined under the provisions ing a deficit of $9,000. Then it ceased to make of this agreement; and the second party further payment, claiming that it had paid agrees, at its own expense, to furnish such for all of the merchantable coal on the premises evidence and make such actual tests as will available by careful mining, although it con- be sufficient for that purpose. And if on such tinued its mining operations until 1901, when examination, proof and tests, it shall be shown the deficit had been reduced to $7,000. In 1901 and proved by the second party that it has it assigned the lease to the defendant, who paid rentals as aforesaid upon all the coal in went into possession and has been mining said premises minable as aforesaid, the seccoal under the lease from that time until the ond party shall thereupon not be required to present.

make any further payments of rent or royalLacoe died in 1899; Shiffer and Ford in ties until it shall have mined out the quantity 1901. By 1905 the actual mining covered the upon which rentals have been so paid, and deficit, and thereafter the defendant tendered thereafter it shall only be liable to pay rentals payment for coal actually mined, aggregating, or royalties upon coal mined in excess of the to January 1, 1912, $8,888.13, and during the amount on which rentals or royalties have year from June, 1907, to June, 1908, also ten- been so paid, using due diligence to complete dered payment of the minimum rental; but the mining of the same. Provided, however, all tenders were refused, as the plaintiffs stood that whenever the party of the second part, by upon the contention that they were entitled to virtue of this clause and the proceedings above full payment of the minimum rental during the indicated, shall have ceased paying the fixed entire period. In fact, from 1894, when the monthly rentals aforesaid for a period of ten lease was made, until the time of the trial, in years, the parties of the first part may at their March, 1912, no payment was ever made for option terminate this lease and proceed to rethe smallest sizes of coal, but the mining there-cover possession of the demised premises as in of was credited upon the actual payment of case of forfeiture for nonpayment of rentals minimum rental, and no payment was made of when due." the minimum rental, except the sum of $13,- The defendant undertook to bring itself with600, paid by the original lessee between 1894 in the benefit of this twelfth covenant, not and 1897, nor was any tender of payment through the medium of disinterested mining made, except by the defendant, as just stated, engineers at all, but through the opinion of in 1905, down to 1908, when this action was the original lessee formed in 1897 and cominstituted for the arrearages on both accounts, municated to the original lessors then living, accruing since 1901. During the entire period, since deceased, who so far as the evidence possession and mining under the lease have shows made no objection. been continuous, and at the time of the trial It will be observed that the covenant does not upwards of 12,000 tons of merchantable coal expressly constitute the engineers a board of still remained available, thus establishing the arbitration, nor provide for an award, and we continuance of the lease and imposing liability held the opinion upon the trial that the right for the amount of the verdict, unless such a to suspend was only dependent upon the formaresult be obviated by the defense which has tion by lessee of an honest, intelligent opinion, been set up.

communicated to the lessors and fortified by The lease stipulates: “The second party examination. Accordingly, we charged the jury (lessee) will pay or cause to be paid to the thus: “The lessees' right to claim the benefit of first parties (lessors) from the first day of Oc- this covenant No. 12 and suspend the minimum tober, A. D. 1894, the annual rental of $4,800 payments of rental is conditioned and depends during the continuance of this lease, payable upon these things: First, the proper officers

of the lessee should have come to the honest and standing of the parties as to what would conintelligent opinion that all the coal in the stitute a fair year's mining. During the period ground had been paid for; second, they should from 1894 to 1897, however, the mining only then have given notice to that effect to the averaged 8,000 tons, from 1897 to 1901 only lessors and selected a competent and disinter- 2,000 tons, from 1901 to 1905 only 9,000 tons, ested mining engineer for the investigation.; from 1905 to 1908 only 3,000 tons, from 1908 then, if the lessors did their part as agreed and to 1912 only 5,000, tons, and over the entire made a like selection, all the machinery would period of the lease, from 1894 to the time of be set in motion to decide the matter properly, trial in 1912, eighteen years, a maximum minbut, if the lessors failed to do their part and ing is shown of only 90,000 tons, a general make a selection so that no further steps along average of 5,000 tons, without disclosure of adethat line could be taken as agreed, the lessees quate cause for such an extraordinary deficit should still make such investigation, if not als below the minimum. This surely demonstrates ready made, as would reasonably justify the a lack of due diligence after 1897 to complete formation of an opinion in respect to the quan- the mining, and, regardless of the attitude mantity of coal left unmined. It is very plain, ifested towards the original lessee by the origI think, that the lessee could not of its own inal lessors prior to their deaths, fully justified sweet will arbitrarily decide to suspend pay their representatives in terminating the suspenment on pretext of an opinion, unsupported by sion, by notice, in 1902, to this defendant, would reasonable investigation or knowledge of the perhaps have justified binding instructions in conditions. It should be an honest and intelli- favor of the plaintiffs, and furnishes persuasive gent opinion, formed in good faith, on adequate reason against disturbing the verdict. knowledge." Then, after an exhaustive review [1-4] The defense in this case, as urged upon of the testimony, we submitted the case with the trial and expressed in the reasons for a new this final instruction: "If you find as a fact trial, is principally predicated upon the contenthat the original lessee in good faith, with hon- tions: (1) That the weight of credible evidence est intention and intelligent knowledge, after established the affirmative of the question subnotice to the lessors in conformity with cove- mitted to the jury, on which their verdict by nant No. 12, suspended payment of the minimum instruction of the court was made to hinge, rental, the verdict in this case should be in fa- viz., the bona fides of lessee's opinion in 1897; vor of the plaintiffs for only $9,469.55; if you (2) that the attitude of the original lessors demfail to find such a fact (and the burden to estab- onstrated their acquiescence in said opinion and lish the fact is upon the defendant), your vér- now estops their representatives on the theory dict in that event should be in favor of the of defendant's reliance thereon in taking and plaintiffs for the full amount, $48,180.” These working the property; (3) that a reasonable infigures were concededly correct, according to terpretation of the lease limits total payment to the alternative adopted.

the royalty value of the original minable coal, The evidence on the subject is fully recited which value is far less than the amount of the in our charge, to which we refer. It consisted verdict, $48,180, added to the prior payment of chiefly of contemporaneous testimony given by $13,000, an inequitable result. the engineer and the treasurer, who were also The first contention is overruled because the stockholders, of the original lessee, and who preponderance was not so plain as to exclude only acquired competency to testify against the the province of the jury, and also because the representatives of the deceased lessors by part right of suspension was subject to the exercise ing with their stock. Fortified though it was, of due diligence. we could not have withdrawn from the jury the The second contention is overruled because we credibility of these witnesses, particularly in fail to find any room for the operation of eslight of the fact, established by later develop toppel in favor of the defendant against the ment of the property, that they were in error to plaintiffs. No claim is made for the minimums the extent of 50,000 tons, more than twice the which accrued from 1897 to 1901, anterior to quantity mined at the time of suspension. defendant's acquisition of the lease. No proof

The failure of the lessors, Shiffer, Lacoe, and was given or offered to show reliance by the Ford, old men, to combat the claim of deficiency defendant upon the conduct of the original lesduring the few remaining years of their lives, sors in failing to make objection, although an was not a fact of controlling significance, and, offer was made to show defendant's knowledge while a jury would have been fully warranted of such conduct. The representatives of the in taking defendant's view of the question, we lessors did give notice of objection, which, couare unable to say that they were not warrant- pled with the broken condition to exercise due ed in taking the opposite view. Furthermore, diligence, revived the original obligation to pay conceding that the suspension of minimum pay- minimum, if, indeed, the obligation was ever ments in 1897 was proper under the circum- really interrupted. stances, the period of suspension, nevertheless, The third contention could not be sustained was limited, in the language of the twelfth without making a new contract for the parties covenant, by the use of due diligence to com- and doing violence to the decisions which hold plete the mining.” This phase of the matter that the contract governs, regardless of defiseems to have been overlooked at the trial, but ciency between amount paid and quantity minclearly it should be considered. The fact of de- able. It is a plain case of stare decisis. Lehigh ficiency could not be conclusively determined by & Wilkes-Barre Coal Co. v. Wright, 177 Pa. the judgment of the lessee, even though honest, 387, 35 Atl. 919; Lehigh Valley Coal Co. v. Evintelligent, and fortified by the finding of en- erhart, 206 Pa. 118, 55 Atl. 864. The purpose gineers in the manner stipulated, for such a of a minimum is to expedite removal of the coal conclusion might be refuted, as it was refuted, and return of the property when removal is by actual development of the property. The complete. It is not inequitable for lessors to privilege of suspension is coupled with the claim literal enforcement of a stipulation which obligation to catch up and finish as fast as pos- entails no injury upon a lessee using due dilisible in the exercise of due diligence, and not gence as defined in the contract. to stop or to loiter at pleasure.

By the contract in this case, the lessee agreed In this case, in the absence of the counter- to pay certain minimum rentals and royalties vailing proof, which it was incumbent upon the “during the continuance of the lease”; the lease defendant to produce, due diligence is prima continues "until all the merchantable coal availfacie determined by the minimum annual pay- able by careful mining shall be mined out"; ment of $4,800 for 15,000 tons above the size upwards of 12,000 tons of such coal have not of pea, at 32 cents per ton, which tonnage add- yet been mined out; therefore the obligation to ed to the incidental production of smaller sizes, pay still continues unless obviated by covenant as shown by the mining under this lease, twelve; and for reasons already stated that amounts to nearly 20,000 tons per year. The covenant cannot obviate under the circumstancminimum, in other words, expressed the under- es. The main distinction sought to be drawn between this lease and those construed in the 14. TAXATION ($ 319*)—VALUATION-BOARD OF cases above cited, viz., the presence here of a ASSESSORS-POWERS. provision absent there, known as

as a “stop Under the express provisions of the act of clause," enabling lessee on certain conditions to March 24, 1905 (P. L. 47), subordinate assesobtain relief, does not lead to any different re- sors are required to make assessments and valsult if the contractual conditions are not ful- uations and the powers of the board of as. filled, and so this case, like the others in the sessors are limited to an examination and revilast analysis, must stand upon the contract. sion of the valuations returned by the suborThe suggestion of hardship in being compelled dinate assessors for increasing or decreasing to pay for more coal than can be mined has the same, and cannot go beyond this, except been urged and ignored in all the cases, and in to add taxable property omitted by the as. the present case the net hardship simply consists in paying, exclusive of interest, about $50,000 for about 100,000 tons of coal, making an Cent. Dig. 's 514, 527–529, 532–534; Dec.

[Ed. Note. For other cases, see Taxation, average royalty of about 50 cents per ton, which is not inordinate in light of reputed profits de- | Dig. $ 319.* ] rived from the business.

Appeal from Court of Common Pleas, Upon a dispassionate view of the whole case,

, while it presents difficulties and perhaps in Luzerne County. volves material errors, we have concluded that Injunction by the Delaware, Lackawanna the verdict should not be disturbed, and accord- & Western Railroad Company against the ingly the motion for a new trial is denied.

County Commissioners of Luzerne County Verdict for plaintiff for $48,180 and judg- and others. From decree refusing an injuncment thereon. "Defendant appealed.

tion, plaintiff appeals. Affirmed. Argued before BROWN, MESTREZAT, POTTER, STEWART, and MOSCHZISKER,

From the record it appeared that the plainJJ.

tiff, the owner of certain tracts of coal land James H. Torrey, of Scranton, John T. Len- in the township of Plymouth, Luzerne coun

James H. Torrey, of Scranton, John T. Len- ty, filed a bill in equity complaining that the aban and Andrew H. McClintock, both of Wilkes-Barre, and Walter C. Noyes, of New assessment and valuation upon its coal lands

in said township was an unlawful, illegal, York City, for appellant. F. W. Wheaton and P. F. O'Neill, both of Wilkes-Barre, for and void assessment, and by reason of such appellees.

illegality the taxing authorities and the tax

collector ought not to be permitted to colPER CURIAM. The facts in this case ap- lect any taxes thereon for the reason that pear in the opinion of the court denying the the subordinate assessor had no part whatmotion for a new trial, and, for the reasons soever in making the assessment, and that the therein stated, the case was for the jury. valuation per acre was not determined by a We discover nothing in the assignments of consideration of what the coal lands would error calling for its submission to another separately and bona fide sell for, as requirjury, and the judgment is therefore affirmed. ed by law, but arrived at on a basis and

blanket rate per foot acre, regardless of con(245 Pa. 515)

ditions which would render the coal available DELAWARE, L. & W. R. CO. v. LUZERNE or nonavailable, and praying that an injuncCOUNTY COM'RS et al.

tion be awarded, restraining the tax col.

lector from collecting a tax based upon such (Supreme Court of Pennsylvania. May 22, 1914.)

illegal and void assessment, and that the 1. TAXATION ($ 608*)–COLLECTION-INJUNC assessment be declared illegal and void and TION.

stricken from the assessment book. Other Equity will enjoin the collection of a tax facts appear in the opinion of the Supreme only where there is either want of power to tax Court. The court on final hearing, dismissed or disregard of imperative constitutional requirements.

the bill. [Ed. Note. For other cases, see Taxation,

Argued before FELL, C. J., and MESTRECent. Dig. $$ 1230_1241; Dec. Dig. $ 608.*] ZAT, ELKIN, STEWART, and MOSCHZIS2. TAXATION (8 608*)-COLLECTION-INJUNC- KER, JJ. TION-EXISTENCE OF OTHER REMEDY. A bill in equity to restrain the collection

Benjamin R. Jones, Andrew H. McClintock, of a tax because of invalidity of the assess- and F. W. Wheaton, all of Wilkes-Barre, and ment was properly dismissed, where it appear-D. R. Reese, of Scranton, for appellant. Wilmake the assessment and levy the tax, and that liam S. McLean, Jr., of Wilkes-Barre, M. J. all the irregularities complained of' could be Mulhall, of Pittston, John T. Lenahan and corrected on appeal.

William S. McLean, Sr., both of Wilkes[Ed. Note.-For other cases, see Taxation, Barre, for appellees. Cent. Dig. $S 1230–1241; Dec. Dig. § 608.*] 3. TAXATION ($ 348*)—VALUATION-REALTY. ELKIN, J. This bill was filed for the pur

The law requiring that the valuation of realty for taxation shall be based on the ac- | pose of having the assessment upon which the tual value limited and defined by the market special tax was levied declared illegal and value, is binding, not only on the taxing au-void, and to restrain the defendants from prothorities, but on the courts, regardless of the ceeding in any manner to collect the tax in apparent desirability of some other method of valuation.

question. [Ed. Note.-For other cases, see Taxation,

[1] Equity has power in a proper case to Cent. Dig. $8584-589; Dec. Dig. $ 348.*]

restrain the collection of a tax, but it is a

For other cases see same topic and section NUMBER in Dec.

& Am. Dig. Key-No. Series & Rep'r Indexes

power that should be cautiously exercised, er method of ascertaining the taxable value because as a general rule there is an ade- Scientific formulas, arithmetical deductions, quate remedy at law. Equity will only inter- and mental contemplations, have small value vene in such a case where there is either in making assessments under our practical want of power to tax or a disregard of im- system of taxation. The market value of perative constitutional requirements. Bang. the separate tracts at public sale, after due er's Appeal, 199 Pa. 79; Gas Co. v. Elk notice, is the legal basis recognized by our County, 168 Pa. 401, 31 Atl. 1077.

statutes of determining the assessable value [2] In the present case the taxing authori- of real estate, and until the Legislature ties had power to make the assessment and changes this method, it is binding, not only levy the special tax, and the irregularities upon the taxing authorities but upon the complained of can all be corrected on appeal as courts as well. provided by law, without the intervention of [4] Nothing contained in the act of 1905, a court of equity. Under all the facts this applicable to Luzerne county, changes the court does not feel warranted in reversing basis of determining assessable value. Unthe decree entered by the learned court below der this act the subordinate assessors make and declaring the assessment illegal and the assessments and valuations, and it is absolutely void. We base our conclusion on made the duty of the board of assessment to the ground that appellant has an adequate "examine and revise the said valuation inremedy at law and that this remedy should creasing and decreasing the same as in their be pursued.

judgment may seem to be proper or adding This decision must not be understood as an thereto such property or subjects of taxation adjudication of the validity of the assess- as may have been omitted.” It will thus be ment, nor as an expression of approval of seen that by the express terms of the act the method adopted by the board for the as- the duties of this board are limited to an exsessment and revision of taxes under the act amination and revision of the valuations reof 1905 (Act March 24, 1905 [P. L. 47]). What turned by the subordinate assessors, increaswe do decide is that every question presenting or decreasing the same as in their judged for our consideration in the case at bar ment may seem proper. Beyond this the can be raised on appeal from the revised | board of assessment cannot go, except to add assessment under the law. There being an taxable property that may have been omitted adequate remedy at law, a court of equity by the subordinate assessors. The act is too should be very slow to extend its restraining plain to be misunderstood, and there should arm when by so doing the entire assessment be no difficulty in determining what the board would be stricken down. We assume that may and may not do. It should be the effort appeals are pending, and that the learned of all parties concerned to fix the valuations court below will have the opportunity of upon a legal basis, and when this is done, passing upon the merits of the questions there will be no occasion for further litigaraised here when the facts are presented on tion. the law side of the court. In this connection Decree affirmed at cost of appellant. it may be proper to remark that all parties concerned should approach the solution of

(245 Pa. 496) the questions involved in a spirit of equity CHARLES v. LEHIGH VALLEY R. CO. and fairness, keeping in mind the rules ap

(Supreme Court of Pennsylvania. May 22, plicable to such controversies as laid down in

1914.) several recent cases. The law is as well set- JUDGMENT (8 199*)—CROSSING ACCIDENT tled as it can be, and nothing of value can JUDGMENT NON OBSTANTE VEREDICTO-Evibe added to what has already been said as to

DENCE. the legal and proper method of making as- tiff's husband from being struck by a locomotive

Where, in an action for the death of plainsessments.

at a crossing, there was nothing to indicate de[3] The law requires that the valuation fendant's negligence other than the mere negof real estate for the purpose of taxation ative testimony of two witnesses that they shall be determined upon the basis of market of law that deceased stopped, looked, and lis

heard no warning, and the bare presumption value, or rather actual value, limited and de- tened, and five disinterested eyewitnesses tesfined by market value. What the law re- tified that ample warning was given, and that quires cannot be disregarded, no matter how had not deceased negligently failed to stop, look,

and listen he would have been aware of the desirable some method not authorized might approach of the locomotive, the court properly prove to be. Pennsylvania Stave Company's entered judgment for the defendant non obAppeal, 236 Pa. 97, 84 Atl. 761. The prop-stante veredicto. er method of making such assessments was [Ed. Note. For other cases, see Judgment, very fully discussed in Lehigh & Wilkes-Cent. Dig. $8 219–274; Dec. Dig. $ 199.*] Barre Coal Company's Assessment, 225 Pa. Appeal from Court of Common Pleas, 272, 74 Atl. 65, Philadelphia & Reading Coal Luzerne County. & Iron Co. v. County Commissioners, 229 Pa. Trespass by Angeline Charles against the 460, 79 Atl. 109, and in several other recent Lehigh Valley Railroad Company, for death of cases. With these cases as a guide there plaintiff's husband. From judgment for deshould be no difficulty in adopting the prop-) fendant n. 0. V., plaintiff appeals. Affirmed.

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

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