Pa.) FERRY V. PHILADELPHIA RAPID TRANSIT CO. 427 been warned by the city inspector to supply | selves. The test is whether they are such as them, that it worked by electricity quietly in to a space not guarded, where workmen were at liberty to walk or stand, and in the line of their approach to a doorway, that the decedent was found at the doorway, crushed by the elevator, and that experts testified that it was dangerous, the question of the master's negligence was for the jury. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1010-1050; Dec. Dig. 8 286.*] Appeal from Court of Common Pleas, Philadelphia County. Reversed. satisfy reasonable and well-balanced minds that the accident resulted from the negligence of the defendant. The discussion of this principle by Judge Agnew, in Allen v. Willard, 57 Pa. 374, is instructive. The doctrine there laid down was cited with approval and applied by our Brother Stewart in the late case of Tucker v. Railway Co., 227 Pa. 66, 75 Atl. 991, where he said with reference to the facts then before him: "No one witnessed the occurrence, and, therefore, Action by Catharine Ferry against the no one can testify how it did actually hapThe case is not very peculiar in this Philadelphia Rapid Transit Company. Judg- pen. ment for defendant, and plaintiff appeals. respect. Accidents in which life is lost not infrequently occur unwitnessed. Such fact Argued before FELL, C. J., and MESTRE- in itself does not operate to protect one ZAT, POTTER, STEWART, and MOSCH- whose negligence can be shown from the genZISKER, JJ. eral situation and circumstances to have been the operative cause. When these are such as to satisfy reasonable and well-balanced minds that the accident resulted from the negligence of the party charged, liability attaches." Other late cases in which, while there were no eyewitnesses of the accident, it was held that the circumstances were such of negligence to the jury, are Henderson v. as to require the submission of the question Refining Co., 219 Pa. 384, 68 Atl. 968, 123 Am. St. Rep. 668, and Millum v. Coal Co., 225 Pa. 214, 73 Atl. 1106. See, also, the opinion in McManamon v. Hanover Township, 81 Atl. 440, and authorities there cited. Michael J. Ryan, for appellant. Leaming and William M. Stewart, appellee. Thomas POTTER, J. In this action Catharine Ferry sought to recover damages for the death of her husband, alleged to have been due to the negligence of the defendant company. Daniel Ferry, the husband of plaintiff, was employed by the defendant company as foreman of laborers. On the morning of the accident the men were employed in piling material in a storehouse. Mr. Ferry was seen with his men, and a few moments later was found crushed under a freight elevator, at the side of the building and in front of an opening or passageway through the wall, where the elevator was located. No one saw the accident, and there was no evidence as to how the deceased happened to be caught under the elevator, or as to what he was doing at that place. At the close At the close of the testimony for the plaintiff, the trial judge entered judgment of compulsory nonsuit, and from the refusal to take it off this appeal has been taken. The defendant company was charged with negligence in failing to guard the space in the floor of the building upon which the elevator descended, so as to prevent employés and others from walking unawares under the elevator when it was raised. Neglect of duty was also charged, in the failure to provide the elevator with a gong or bell or some device to give warning in advance of the descent of the elevator to any one who might be under it. In the absence of these precautions, it was alleged that the operation of the elevator was dangerous, and rendered the place unsafe for the workmen and others. In actions of this character, there must, of course, be affirmative proof of negligence before recovery can be had. But it is not always essential that there should be an eyewitness of the occurrence. The proof may be furnished by the circumstances them Turning now to the evidence upon the part of the plaintiff in this case, to gather the facts that shed light upon the accident, it appears that at the time the defendant owned and occupied for storage purposes a large two-story brick building at the northwest corner of Fifteenth and Huntingdon streets, Philadelphia. The building was divided into two compartments by a brick wall running north and south, on each side of which was a car track parallel with the wall. In this wall, a short distance from the Huntingdon street wall, was an opening or doorway, which extended from the floor upward. Guideposts were erected at each side of this opening, which were joined together about 32 feet from the floor by an iron bar. There were no On the guideposts a freight elevator, with a platform 8 or 10 feet square, ran to the second story, 18 or 20 feet above. When lowered, the elevator reached the floor, where the west track ran, but did not go below it. A witness described it as "nothing more than a plain platform elevator, a frame elevator-all open." guards to prevent people from passing into the space under it, when the elevator was raised. No gong was provided, nor was there any other device to give notice when the elevator was descending. The evidence showed that the only way such notice was given was by some one on the elevator call For other casi see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes ing out, as it came down, "Look out at the bottom." The elevator was operated by electricity, and ran very quietly. The plaintiff showed by a city inspector, that he had inspected this elevator on January 14, 1907, and had reported that it should have a gong attached to it, in order to warn persons below when it was about to descend. There was evidence to show that a copy of this report was sent the same day to the president of the defendant company; but no gong had been attached before March 2, 1907, the date of the accident. Expert witnesses testified that an elevator such as this, uninclosed and without gong or rope attachment, was not a reasonably safe device or apparatus. One witness testified that among the trade such an elevator would be called a "trap." The opening in the wall was at times used by the employés in the building as a passageway from one side of the building to the other. The only other way of reaching the east side, where the office was located, from the west side or vice versa, was by going out on Huntingdon street and around. Between the place where the men were working and the opening in the wall, where the elevator was located, there was a pile of rails, 15 or 20 feet high, which prevented the workmen from seeing the place. There was no load on the elevator, nor was there any person on it, when Ferry was discovered. He was found fastened between the elevator and the iron bar across the opening in the wall. According to one witness he appeared to have been actually under the platform of the elevator, and had tried to get out. reasonable and well-balanced minds might not fairly conclude that the accident resulted from negligence by the defendant. Whether it did or not was for the jury to say, as it was for them also to determine the question of contributory negligence upon the part of the person who was killed. The motion to take off the nonsuit should have been granted. The second assignment of error is sustained, and the judgment is reversed, with a procedendo. (232 Pa. 366) HOLDEN v. BERNSTEIN MFG. CO. (Supreme Court of Pennsylvania. July 6, 1911.) 1. PATENTS (§ 219*)-ACCOUNTING FOR ROYALTIES-JURISDICTION OF EQUITY. granted may invoke equity jurisdiction to proA person to whom letters patent were cure an accounting for royalties, under the terms of an assignment of the patents, on the sale of articles manufactured by the assignee, four different patents being involved, each containing several claims. [Ed. Note. For other cases, see Patents, Cent. Dig. §§ 339-349; Dec. Dig. § 219.*] 2. EQUITY (§ 39*)-JURISDICTION-RETENTION OF JURISDICTION REQUIRED. jurisdiction of one subject of a contest, will A court of equity, having properly taken dispose of the whole matter in controversy, and thus avoid a multiplicity of suits. [Ed. Note.-For other cases, see Equity, Cent. Dig. §§ 104-114; Dec. Dig. § 39.*] 3. EQUITY (§ 39*)-JURISDICTION-RETENTION OF JURISDICTION REQUIRED. Where equity takes jurisdiction of an accounting for royalties, on patented articles, it will, to avoid a multiplicity of suits, proceed with the settlement of other points in controplaintiff, and the amount of commissions due versy, such as the amount of salary due to the him on sales for any new business developed by him while in defendant's employ in accordance with the terms of the contract. Dig. §§ 101-114; Dec. Dig. § 39.*] [Ed. Note.-For other cases, see Equity, Cent. Appeal from Court of Common Pleas, Philadelphia County. Bill in equity by George Holden against the Bernstein Manufacturing Company. From a decree dismissing the bill, plaintiff appeals. Reversed, bill reinstated, and cause remanded. Bill in equity for discovery and account. Presumably the deceased was acting in the discharge of his duty as foreman of the laborers at the time. There is also the presumption, in the absence of any proof to the contrary, that he exercised due care under the circumstances for his own protection. Something called him to the opening or doorway through the wall. It is a fair inference that, while there, the elevator, operated by electricity and moving quietly, descended unnoticed upon him and caught him. What brought the elevator down did not appear. But it is argued that, if due warning by means of a gong or bell or other suitable equipment had been given, the deceased could have escaped. We have, then, the fact of an elevator, not equipped with warning signals, permitted to work quietly up and down in a space not guarded from access, but where workmen were at liberty to walk or stand, in the use of the floor, and which space was apparently directly in the line of their approach to an opening or doorway leading to another portion of the building. Then the decedent was found in this space, and at the doorway, crushed by the elevator. From a consideration of all circumstances disclosed by the evidence, we cannot say that "(1) That your orator, upon June 21, 1907, entered into a written contract with the Bernstein Manufacturing Company, a corporation, defendant, whereby said defendant corporation engaged your orator as superintendent in defendant's factory upon the terms therein stated. Said written contract was duly executed by your orator and defendant, and is as follows: June the twenty first, 1907. Mr. George Holden. Dear Sir: We, the undersigned do hereby agree to engage your services as superintendent of construction with the view of lessening the cost Pa.) HOLDEN v. BERNSTEIN MFG. CO. 429 of manufacture, and at the same time retained to it by your orator, as aforesaid. That the present high standard of quality of our upon May 27, 1910, your orator notified deproduct and to improve upon any methods of fendant of his intention to terminate his construction that are at present not of the services as superintendent, under the aforemost approved modern practice. You shall said written contract, upon the last working have full control of the force of mechanics day of its term, viz., July 30, 1910, in acand laborers. It is understood that you will cordance with the provisions of said agreegive your undivided attention to our busi- ment; and thereafter, on June 21, 1910, the ness and always work to the interest of the defendant refused to permit your orator to company. Any letters patent that may be continue his services as superintendent, and granted for inventions by you, are to be is- excluded him from their factory although sued in your name and assigned to the Bern- your orator was ready and willing to, and stein Mfg. Company. For all of which we did offer to, do and perform his work as suwill pay you an annual salary of $3,500, thir-perintendent, as required by said contract. ty-five hundred dollars, payable in monthly That defendant has not paid your orator the installments, and we further agree to pay portion of his salary provided for in said you two per cent. (2%) on the amount of contract at the rate of $3,500 per annum, sales for any new business you may develop for the period from June 20, 1910, to July 30, in the manufacture of lockers, shop and of- 1910. fice fixtures; your services to begin August first, 1907, and to continue for three (3) years. Each to give the other two (2) months' notice prior to August first, 1910, of any intention of terminating this agreement, otherwise to continue in force from year to year thereafter. If this agreement is terminated at its expiration then we will agree to pay you one per cent. (1%) for all goods of your invention that shall be manufactured by us for the full term of such patents. Bernstein Mfg. Co. Wm. F. Bernstein, President. Accepted, Geo. IIolden.' "(2) That your orator duly performed all his duties under the aforesaid contract with defendant. That, in pursuance of said contract, your orator invented a certain new and useful improvement in end rails for bedsprings, which he duly secured by letters patent of the United States, No. 889,007, which he assigned to defendant; and a certain new and useful improvement in cots or bedsteads, which he duly secured by letters patent as aforesaid, No. 919,865, which he assigned to defendant; and a certain new and useful improvement.in utensil sterilizers, which he duly secured by letters patent as aforesaid, No. 929,307, which he assigned to defendant; and a certain new and useful improvement in metallic cabinets, which he duly secured by letters patent as aforesaid, No. 943,350, which he assigned to defendant. "(3) That defendant did not permit your orator to have full control of the force of mechanics and laborers of defendant during the time of his employment, but the officers of defendant gave orders directly to employés properly under your orator's control. That your orator did develop new business in the manufacture of lockers, shop and oflice fixtures during the period the aforesaid contract with defendant was in force, and the defendant has made sales of said lockers, shop and office fixtures. That since the expiration of said written contract defendant has manufactured and sold goods of the invention of your orator. That said defendant has retained, and still does retain, the possession and ownership of the patents assign "(4) That your orator does not know and is unable to ascertain, except from said defendant, the amount of sales of lockers, shop and office fixtures, and goods of your orator's invention sold by the defendant, and your orator has demanded of defendant an accounting for sales of lockers, shop and office fixtures, and for sales of goods of his invention, and for payment of the sums respectively due on such sales, and for payment of his salary due as aforesaid from June 20, 1910, to July 30, 1910, as agreed to be paid according to said written contract, but the said defendant has neglected and refused, and still does neglect and refuse, to render your orator the accounts and make the payments as aforesaid. "(5) Wherefore your orator needs equitable relief, and prays that it may be ordered by your honorable court that: (a) Said defendant may make discovery to your orator of all sales of lockers, shop and office fixtures sold by them. (b) Said defendant may make discovery to your orator of all sales of goods of his invention since July 31, 1910. (c) Said defendant make a full and complete accounting to your orator of all lockers, shop and office fixtures sold by them, and of all goods of his invention sold by them since July 31, 1910. (d) Said defendant pay to your orator his salary from June 20, 1910, to July 30, 1910, at the rate of $3,500 per annum, and 2 per cent. on all sales of lockers, shop and office fixtures sold by them, and 1 per cent. on all sales of goods of your orator's invention since July 31, 1910. (e) Your orator. have such other and further relief as to your honors may seem meet in the premises." Argued before BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ. Paul Reilly, T. Truxton Hare, and Henry Hodge, for appellant. Paul C. Hamlin and Julius C. Levi, for appellee. B. POTTER, J. [1] It appears from the record here that the court below sustained a demurrer to the plaintiff's bill. The reason is not given, but presumably it was because it was thought there was an adequate remedy at law. If this was the reason, we cannot agree that it is good in this case. The plaintiff sought for an accounting for royalties claimed under the terms of an article of agreement, upon sales of certain articles 1. STATUTES (§ 117*) - TITLES - MECHANICS' manufactured by the defendant, under the priority to mechanics' liens over advance money [Ed. Note.-For other cases, see Statutes, Cent. Dig, §§ 153-157; Dec. Dig. § 117.*1 2. STATUTES (§ 109*)-SUBJECT AND TITLEREQUISITES OF TITLE. has six claims. Another patent has five claims, and another contains three claims. An accounting for royalties upon articles manufactured under some one or more of these various claims would involve an examination of the various articles manufactured, and a comparison of their structure with the elements of the inventions set forth in the claims of the various patents, and it would require also the fixing of the proportionate value of the parts of the articles included within the scope of the claims to the value of the whole article. These processes would be far too complicated to be submitted to a jury with any reasonable expectation of an intelligent solving by them of the problems involved. Such work requires the services of a chancellor or of a master in chancery. In Adams's Appeal, 113 Pa. 449, 6 Atl. 100, it was held that a bill in equity for an accounting is the proper remedy to recover royalties upon a patented article. [2] It is a familiar doctrine that, where a court of equity properly takes jurisdiction of one of the subjects of a contest, it will dispose of the whole matter in controversy between the parties, and thus avoid a multiplicity of suits. Myers v. Bryson, 158 Pa. 246, 27 Atl. 986; Gwinn v. Lee, 6 Pa. Super. Ct. 646. [3] This would justify a court of equity, after having taken jurisdiction in this case of the complicated matter of the accounting for royalties, to proceed with the settlement of the other points in controversy between the parties, as to the amount of salary, if any, due to the plaintiff, and as to the amount of the commission due him on sales for any new business developed by him while in the employ of the defendant, in accordance with the terms of the contract. The judgment of the court below is reversed, the bill is reinstated, and the cause is remanded to the court below for further proceedings in accordance with this opinion. The title to a statute need not be a general index to its contents, but it is sufficient if it relates to one general subject, no matter how the subordinate to the general purpose of the act details may be multiplied, provided they are and germane to its provisions. [Ed. Note.-For other cases, see Statutes, Cent. Dig. §§ 136-139; Dec. Dig. § 109.*] 3. STATUTES (§ 85*)-VESTED RIGHTS-VIOLA TION. Act June 4, 1901 (P. L. 437), § 13, giving priority to mechanics' liens over advance money mortgages, is violative of Const. art. 3, § 7, providing that the General Assembly shall not pass any general or special law providing or changing methods for the collection of debts or the enforcing of judgment, or prescribing the effect of judicial sales of real estate, since the act in question gives to mechanics' liens a preference and priority to which they were not entitled prior to the present Constitution. [Ed. Note.-For other cases, see Statutes, Cent. Dig. §§ 94, 95; Dec. Dig. § 85.*] 4. CONSTITUTIONAL LAW (§ 38*)-CONSTRUCTION-VALIDITY OF STATUTE. organic law, mere lapse of time cannot cure the If a statute is plainly in conflict with the defect. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 36; Dec. Dig. § 38.*] Appeal from Court of Common Pleas, John H. Carr, mortgagor, and another. J. Finn and others, claimants, appeal. Af Distribution of a fund raised by sheriff's sale under a judgment upon a scire facias sur mortgage. Exceptions to report of George DeB. Myers, Esq., auditor. From the record it appeared that Harlan Page, mortgagee, issued a scire facias sur mortgage against John H. Carr, mortgagor, and Charles C. Norris, Jr., real owner. Judgment for want of an affidavit of defense was entered on April 3, 1909, in the sum of $34,167. Under this judgment the mortgaged premises were sold by the sheriff, on May 3, 1909, to Warren F. Martin for $25.000. The mortgaged premises which were sold under the levari facias consisted of 24 dwellings and a large lot of ground adjoining them. Against the 24 dwellings a number of materialmen had filed mechanics' claims, and upon the petition of one of them (Reuben A. Fowler) the court below ordered the fund realized at the sheriff's sale to be paid Pa.) PAGE v. CARR 431 into court for distribution. Pursuant to this | constitutional and void, and awarded the order, upon September 27, 1909, the sheriff fund to the holder of the mortgage. paid into court the sum of $23,559.22, being the balance of the $25,000 paid by the purchaser at the sheriff's sale, less city taxes and costs of suit. The court appointed George DeB. Myers, Esq., auditor. The claimants appearing before him were Harlan Page, mortgagee, and a number of mechanics' lien creditors, as follows: John M. B. Morrow, Reuben A. Fowler, Reliance Manufacturing Company; James Moore, and the present appellants, Finn & Jennings, and the Germantown Woodworking Company. After the testimony was taken by the auditor, some of the mechanics' lien claimants filed petitions to have an issue awarded, in order to have certain disputed questions of fact raised by the testimony determined by a jury. Subsequently these petitions and the rules thereon allowed by the court to show cause were withdrawn. On January 25, 1910, the auditor filed an interlocutory report, setting forth that the total amount of the claims of the mechanics' lien creditors amounted to a trifle over $8,800, and that the claim of Harlan Page was for the entire fund under his judgment of $34,167. The court, upon February 11, 1910, upon petition and rule allowed Harlan Page, ordered that $10,000 of the fund in court be paid to Mr. Page, as mortgagee. He based his conclusion upon two grounds; the first being that the subject of the statute was not clearly expressed in the title, and therefore it was in violation of article 3, § 3, of the Constitution. We are not impressed with the strength of this proposition. As was said in Gilbert's Estate, 227 Pa. 648, 76 Atl. 428: "It has been decided, over and over again, that the title need not be a general index to the contents of an act, but that it is sufficient if it relates to one general subject, no matter how the details may be multiplied, provided they are subordinate to the general purpose of the act and germane to its provisions." And in Bridgewater Borough v. Bridge Co., 210 Pa. 105, 108, 59 Atl. 697, 698, our Brother Brown said: "If the title fairly gave notice of the subject of the act, so as to reasonably direct inquiry into its body, the constitutional requirement was not violated. State Line & Juniata R. R. Co.'s Appeal, 77 Pa. 429; Carothers v. Phila. Co., 118 Pa. 468 [12 Atl. 314]; Dailey v. Potter County, 203 Pa. 593 [53 Atl. 498]." The evil of loading the title of an act with details, in the effort to express the subject clearly, was pointed out in Commonwealth v. Broad St. Ry. Co., 219 Pa. 11, 17, 67 Atl. 958, 960, by Chief Justice Mitchell, where he says: "It has always been held that the title of an act need not be a complete index to its contents. The time has come to say that it not only need not, but ought not." The auditor felt that the title indicated that it affected only "parties to" building contracts, and gave no notice to any one, other than "parties to" such contracts, that they might be affected by the legislation. But the title gives notice of more than this when it describes the act as regulating the effect of contracts for work and labor to be done, and labor and materials to be furnished to any building, etc. When this statute was enacted, there was other legislation in existence upon the subject of the priority of mechanics' liens over advance money mortgages, and the notice in the title of this act as to repealing, consolidating, and extending POTTER, J. Two appeals from the same existing laws in relation to building conjudgment, involving the same question of tracts was sufficient to put parties interested law, are here presented by different appel- in the effect of such contracts upon notice. lants. The question arises upon the distribu- It is plain that the act was intended to be tion of a fund realized from the foreclosure a codification of the law relating to claims of a mortgage, which represented purchase money, although it was postponed to the lien of advance money mortgages in aid of a building operation. The auditor, upon April 7, 1910, completed his report, awarding the balance in court, amounting to $13,559.22, less the expenses of the audit, to Harlan Page, mortgagee. Exceptions to the auditor's report were filed by Harlan Page, Reuben A. Fowler, Finn & Jennings, Germantown Woodworking Company, John M. B. Morrow, and the Reliance Manufacturing Company. The auditor dismissed all the exceptions in his final report. The court dismissed the exceptions and confirmed the auditor's report. Argued before BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ. Stanley Folz and Leon H. Folz, for appellants. Sheldon Potter and Alfred S. Miller, for appellee. [1, 2] The principal question raised is the constitutionality of the thirteenth section of the mechanic's lien act of June 4, 1901 (P. L. 431), which gives priority to mechanics' liens over advance money mortgages. The learned auditor appointed by the court below to make distribution of the fund held that the thirteenth section above referred to was un under contracts for work done and materials furnished to buildings. Such work may be done and such materials may be furnished by others than mechanics, so there can be no special significance in the fact that the phrase "mechanics' liens" does not appear in the title, so long as descriptive words are used which include, not merely mechanics' but others who are entitled to protection for their claims under the act. [3] Our difficulty in this instance is not with the title, but is with the second propo |