until after the decree appealed from, it can- | ment was frozen over with water which came not be considered by this court. from a terrace. On this counsel for the city

For the reasons stated, we will affirm the insist that the jury should not have been perdecree of the court below. mitted to find that the icy condition of the

Decree affirmed, with costs to the appellee. pavement, which caused the appellee's fall,

1. MUNICIPAL CORPORATIONS (§ 821*)-INJURY TO PEDESTRIAN-PROOF OF NEGLIGENCE.

In an action for injuries to plaintiff, a man of advanced age, from falling on an icy pavement, evidence that the ice had been on the pavement for a week or ten days prior to the accident required that the question of the defendant city's negligence in permitting the ice to remain after constructive notice of its presence, be submitted to the jury, though plaintiff had testified in depositions previously taken that 22 hours before the accident the ice was soft, but that at the time of the accident it was frozen over with water which came from a terrace; there being nothing in the deposition inconsistent with the other evidence as to the length of time the ice had been on the pavement.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 1745-1757; Dec. Dig. § 821.*]

2. MUNICIPAL CORPORATIONS (§ 818*) -IN

JURY TO PEDESTRIAN-EVIDENCE.

In a pedestrian's action against a city for injuries from falling on an icy pavement, an ordinance requiring the removal of snow from sidewalks was properly admitted in evidence.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1726-1738; Dec. Dig. § 818.*]

had existed for a length of time sufficient
to have given constructive notice of it to
the city. What the appellee testified to in
his deposition as to the condition of the street
when he passed over it early in the afternoon
may have been true. He testified on the
trial that when he fell, between 5 and 6
o'clock in the evening, there was slippery ice
on the pavement, and nothing in his depo-
sition was inconsistent with what the other
witnesses said as to the length of time the
ice had been on the pavement. The learned
trial judge, with characteristic care, clearly
explained to the jury that, unless they found
from all the testimony that the icy condition
of the pavement was dangerous, and had
been so for so long a time that the city was
presumed to have had notice of it, there
could be no recovery. He further instructed
them that, if the accident had been caused by
ice that had formed on the day it occurred,
there could be no recovery.
clearly for the jury, and nothing at all is
found in the charge of the court to which the
city can fairly and justly except.

Appeal from Court of Common Pleas, Phila-ror. delphia County.

Trespass by John Hibberd against the City of Philadelphia for personal injuries. From a judgment for plaintiff, defendant appeals. Affirmed.

Argued before BROWN, MESTREZAT, POTTER, ELKIN, and MOSCHZISKER, JJ. Paul Reilly and Thomas Boylan, Asst. City Sols., and Michael J. Ryan, City Sol., all of Philadelphia, for appellant. L. Stauffer Oliver and A. S. Weill, both of Philadelphia, for appellee.

The case was

[2] The eighth assignment complains of the admission of an ordinance of the city requiring the removal of snow from the sidewalks and gutters in all parts of the city. The admission of this ordinance was not erLederman v. Pennsylvania Railroad Co., 165 Pa. 118, 30 Atl. 725, 44 Am. St. Rep. 644; Foote v. American Product Co., 195 Pa. 190, 45 Atl. 934, 49 L. R. A. 764, 78 Am. St. Rep. 806; Herron v. Pittsburg, 204 Pa. 509, 54 Atl. 311, 93 Am. St. Rep. 798; Riegert v. Thackery, 212 Pa. 86, 61 Atl. 614. No error being disclosed by the record, the judgment is affirmed.

1.

(245 Pa. 212)

In re DARLINGTON'S ESTATE. Appeal of SHARPLESS et al. (Supreme Court of Pennsylvania. May 4, 1914.)

TRUSTS (§ 218*)-LIABILITY OF TRUSTEESECURITIES CONVERTED BY ATTORNEY.

law.

PER CURIAM. [1] The appellee fell on an icy pavement in the city of Philadelphia, and, for the injuries sustained, he recovered a judgment in the court below, the jury having In the absence of negligence on the part of found that the city had been negligent in a trustee, she is not liable for securities taken permitting the ice to remain on the pavement. and converted to his own use by her attorney, This finding was justified by the testimony of merely because the securities were not such inseveral witnesses, who stated that the ice-Vestments of trust funds as are authorized by from one to three inches in thickness-had been on the pavement for a week or ten days prior to the accident. It appeared that the plaintiff had testified, in his deposition taken some time before the trial, in view of his advanced age, that when he passed over the pavement at 3 o'clock on the afternoon of the day he fell the ice was soft, and that when he returned, 21⁄2 hours later, the pave

[Ed. Note.-For other cases, see Trusts, Cent. Dig. §§ 310-313; Dec. Dig. § 218.*] 2. TRUSTS (§ 217*)-BREACH OF TRUST-UNAU

THORIZED INVESTMENTS.

While the investment of trust funds in securities not expressly authorized by statute may render the trustee liable for loss from depreciation, it is not a breach of trust.

[Ed. Note.-For other cases, see Trusts, Cent. Dig. §§ 301-304, 306-309; Dec. Dig. § 217.*]

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

3. TRUSTS (8 234*) — TRUSTEE - DUTIES AND [ been negligent in affording her attorney an LIABILITIES. opportunity to appropriate the securities, but it is rested entirely on the ground that the bonds taken were not investments that a trustee is authorized to make, and the single

A trustee is not an insurer of trust funds against the possibility of loss, but is merely required to exercise good faith and reasonable diligence.

[Ed. Note.-For other cases, see Trusts, Cent. question presented by the appeal of the execuDig. 88 340-342; Dec. Dig. § 234.*]

4. TRUSTS (§ 234*)-LIABILITY OF TRUSTEECONVERSION BY ATTORNEY-KNOWLEDGE.

That a trustee three years before her death

tors of the will of the trustee is whether a trustee is liable for securities taken by her attorney at law and converted to his own use

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

[Ed. Note.-For other cases, see Trusts, Cent. tor, and his findings of fact and conclusions Dig. §§ 340-342; Dec. Dig. § 234.*]

Appeal from Orphans' Court, County.

In the matter of the Estate of William Penn Darlington, deceased. From a decree dismissing exceptions to report of audit, Alfred D. Sharpless and another, executors of Alice P. D. Derrich, deceased, and also the Provident Life & Trust Company of Philadelphia, succeeding executor and trustee under the will of William Penn Darlington, deceased, separately appeal. On appeal by the executors of Alice P. D. Derrich, judgment reversed. Appeal by the trust company dismissed.

of law are clearly and concisely stated. It Chester appears by his findings, which rest on undisputed testimony, that the trustee had the fullest confidence in her attorney, and that she had ample reason for her confidence. She made inquiries concerning him from the most reliable sources before retaining him, and for many years he represented her with entire fidelity. He was an attorney at law of the highest standing in his profession, and his reputation for honesty and financial responsibility in the community where he lived was never questioned during the life of the trustee. For ten years he had a key to the box in which the trust securities were kept in a bank, and to a box in the same place where the trustee's individual securities were kept. There was nothing in his conduct in the community to put her on guard, and nothing in his relations with her in the management of the estate which could excite any suspicion, except possibly one matter which occurred in the latter part of her administration of the trust, to which reference will be made in considering the appeal of the Provident Life & Trust Company, succeeding trustee.

Argued before FELL, C. J., and BROWN, MESTREZAT, STEWART, and MOSCHZISKER, JJ.

Arthur P. Reid, of West Chester, for Derrick's executors. George B. Johnson, of West Chester, and Townsend, Elliott & Townsend, of Philadelphia, for Darlington's trustee.

FELL, C. J. Both appeals are from a decree of the orphans' court affirming the report of an auditor of the account of a testamentary trustee filed by her executors. Credit was asked by the accountants: First, for the market value of securities of the trust estate that had been taken by the attorney at law of the trustee from her safe deposit box in a bank and converted to his own use; and, second, for the amount of a mortgage collected by him and for moneys intrusted to him for investment in real estate securities, which he appropriated. The securities taken were bonds of railroad, gas, electric, and water companies in which the moneys of the estate had been invested. Credit was refused by the auditor for the loss of the securities because they represented investments that a trustee is not authorized by law to make, and credit was allowed for the money collected on the mortgage and for the loss of money intrusted to the attorney for investment in mortgages.

The surcharge made by the auditor is based on the proposition that, since a trustee who makes investments in securities other than those authorized by the act of assembly must account for the principal invested, unless relieved from liability by the acceptance of such securities by the cestui que trust, it follows the securities are, as to the estate, a nullity and, when rejected, are to be treat ed as held by a trustee as security to himself for the repayment to the trust estate of the moneys invested in them, and that, if the securities are lost, although without fault on his part, the loss must be borne by him. conclusion is thus stated:

"The liability for the moneys so invested, having been once fastened upon the trustee at the time the investment was made, cannot be discharged by anything that might happen to such securities."

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

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

is unable to produce securities because of | no negligence upon the part of the trustee in their loss, for which he is not answerable, trusting her attorney is erroneous, because should suffer only to an extent necessary to make up any deficiency occasioned by a failure of the securities to realize on the market the amount invested in them. He, however, in order to avoid delay and to afford a speedy determination of a question which could not be finally decided except on appeal to this court, affirmed the report of the auditor.

In an action for the amount of a stake deposited by plaintiff with the other party to a wagering contract, the burden is on plaintiff to show that when he demanded the return of the stake the contingent event which was to determine the bet had not taken place.

[Ed. Note.-For other cases, see Gaming, Cent. Dig. §§ 100-102; Dec. Dig. § 49.*] 4. GAMING (§ 50*) - WAGERING CONTRACT — ACTION TO RECOVER STAKE-NONSUIT.

Where, in an action to recover money deposited by plaintiff with defendant as security for the payment of wagers, it appeared that defendant operated a "bucket shop" and accepted bets from plaintiff on the fluctuations of the stock market, that plaintiff deposited such money as security for payments of losses, and that on the day before defendant failed plaintiff ordered his transactions closed and demanded his profits, but the evidence did not show with certainty that the transactions were open, undetermined, and unexecuted when plaintiff ordered them closed, or that any sum then remained in defendant's hands dependent on the fluctuations of the market, the court properly granted a nonsuit.

Ed. Note. For other cases, see Gaming, Cent. Dig. §§ 103-107; Dec. Dig. § 50.*]

Appeal from Court of Common Pleas, Philadelphia County.

upon wagers or bets that the market value of certain stocks would rise or fall as evidenced by quotations from the New York Stock Exchange. The business did not contemplate the purchase or sale of shares of stock, but was only a dealing in differences or fluctuations in the prices of stocks. The firm would receive deposits of money as a stake or security for the payment of the difference between the selling price of the stock on one

day and the selling price of the same stock on another day. The business was closed out on November 28, 1904. Since the 22d day of October, 1904, the plaintiff deposited with the defendants at various times certain sums of money as a stake or security upon the bet or wager of the fluctuations of certain specified stocks, aggregating $1,860, which is now sought to be recovered in this action. An affidavit of defense was filed denying the liability of the defendants for the whole or any part of the sum claimed by the plaintiff. A rule for judgment was taken which was discharged by the court below. An appeal was taken to this court, and the judg

ment of the court below was affirmed. Davis v. Fleshman, 232 Pa. 409, 81 Atl. 412. In the opinion we said, inter alia:

"Whether this is a case where the evidence will show that the illegal gambling transactions were closed and the accounts stated between the parties, and where the original deposits still remain with the broker so identified that they can be recovered back; or, an instance where the plaintiff is endeavoring to reclaim losses paid on illegal gambling transactions, which the law will not aid him to recover; or, one where the plaintiff dealt with the defendants as principals, and where the conduct of the parties demonstrates that as between themselves they treated the matter as closed, settled, and ended, and where, all being sui juris, the law will look at the plaintiff as one who has paid his betthe loss from which he will not be assisted to recover cannot be satisfactorily ascertained from the information contained in the statement of claim and the affidavits of defense."

On the subsequent trial of the cause, the learned court below granted a nonsuit which it subsequently refused to take off, and the plaintiff has taken this appeal.

[1] We have no quarrel with the doctrine of the cases cited by the appellant. Since the decision in McAllister v. Hoffman, 16 Serg. & R. 147, 16 Am. Dec. 556, decided more than

Assumpsit by Joseph A. Davis against James B. Fleshman and another, trading as J. B. Fleshman & Company, to recover a stake deposited with defendants in a gambling transaction. From an order refusing to take off nonsuit, plaintiff appeals. Affirmed. three-quarters of a century ago, it has been The facts appear in the opinion of the Supreme Court and in Davis v. Fleshman, 232 Pa. 409, 81 Atl. 412. The trial judge entered a nonsuit, which the court in banc subse-turns has happened, if the stake has not acquently refused to take off.

Argued before BROWN, MESTREZAT, POTTER, ELKIN, and MOSCHZISKER, JJ. Trevor T. Matthews, of Philadelphia, for appellant. B. F. Pepper and G. W. Pepper, both of Philadelphia, for appellees.

MESTREZAT, J. In 1904 the defendants were engaged in the business of gambling

the settled law of this state that a recovery may be had from a stakeholder even though the contingent event upon which the bet turns has happened, if the stake has not actually been paid over to the winner. Before actual payment the gambler may repent and demand of the stakeholder the repayment of

his deposit. The law regards the transaction as illegal and void, and the deposit in the hands of the stakeholder is still the money of the gambler. Hence he may maintain an action to recover it before it passes into the hands of the other party to the gambling transaction. The authorities cited by the

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

learned counsel for the appellant declare this to be the law of this state, and we know of no decision of this court in conflict with it.

[2] It is equally well settled in this jurisdiction that all mere wagering contracts are illegitimate transactions which the law declares void and which will not be enforced at the instance of either party to the contract. It will not aid the winner to recover from the loser the amount of the stake, and it will not give assistance to the loser to recover back the amount of the bet after the transaction has been closed. It will leave the parties as it finds them. The law will not attempt to settle disputes between gamblers by enforcing their alleged rights arising out of the illegal transaction.

In

by the defendants, and the evidence does not
support the plaintiff's contention. At all
events, the evidence is so uncertain that a
verdict finding such to be the fact could not
be sustained. If the bets were against the
plaintiff, the deposit, automatically, went into
the hands of the defendants as winners.
the absence of evidence to the contrary, it
must be assumed that the successive amounts
were deposited with the defendants because
each prior deposit went to the defendants as
winners; each transaction being closed and
followed by its successor. The evidence does
not, therefore, clearly show any sum remain-
ing in the hands of the defendants dependent
upon the fluctuations of the market in favor
of the plaintiff which was necessary to en-
able the plaintiff to recover in this action.

[3, 4] This was not a case of marginal dealings in which a broker purchased and sold This is not an action brought by the loser stocks for his customer. It is not pretended in a gambling transaction against a stakethat such was the purpose of the contract holder to recover the amount of the deposit entered into between the plaintiff and the de- before the transaction is closed and the fendants. The latter carried on what is amount paid to the winner. The defendants known as a "bucket shop," in which the real were not stakeholders of the funds deposited transaction was a daily settlement of differ- with them in the sense which would permit ences in the fluctuations of the prices of a recovery by the loser in an undetermined stocks on the New York Stock Exchange. No or unexecuted gambling transaction. The stocks were purchased or sold by the defend- plaintiff and defendants were both parties to ants for or on account of customers. This the illegal contract. The money deposited by was well known by the plaintiff. The plain- the plaintiff with the defendants was a watiff deposited with the defendants a certain ger upon the fiuctuations of the prices of cersum of money as a wager or bet that a cer- tain specified stocks. This deposit was made tain number of shares of a particular stock with the defendants to secure them in their would advance. If the stock did so advance, winnings. They could have trusted the the plaintiff was the winner. If, however, plaintiff to pay his debt if he lost but they the price of the stock declined, the defend- did not intend to take any such chance. ants won and held the amount of the de- They therefore made themselves secure by posit. During the whole period of the trans- requiring the deposit. When the bet was action involved in this case the plaintiff won by the defendants, it automatically passmade the deposits or series of bets upon the ed to and went into the possession of the devarious stocks from time to time; the fendants. The transaction was then closed, amount aggregating, as already observed, $1,- and the defendants no longer held the deposit 860. It appears that in six of the transac- awaiting the happening of the contingency tions, in which the aggregate payments were which determined their right to the deposit. $220, the movement of the market was in They were not stakeholders who were disinfavor of the plaintiff. He ordered the trans-terested in the result of the bet and who held action closed and made a demand for his prof- the fund for the successful party to the waits on November 28, 1904; but the defendant gering contract. They were parties to the ilfirm failed the following day, and he was un-legal transaction and held the deposit as winable to collect the amount of his winnings. ners of the bet. This action therefore was As to whether the other bets resulted favorably to the plaintiff the evidence does not with certainty disclose. Uncertainty as to this and other other material matters exists throughout the case. The evidence on the trial of the cause did not clear up the uncertainty which we held to exist in the pleadings when the case was here before, and we declined to enter judgment for want of a sufficient affidavit of defense. The burden was upon the plaintiff to show, as alleged in his statement, that the several transactions were open, undetermined, and unexecuted on November 28, 1904, and that the contingent event which was to determine the bet had never taken place. This is denied

brought by one party against the other party to a gambling transaction which the law declares void and which it will not enforce in aid of either party.

The judgment is affirmed.

(245 Pa. 406)

THIEL v. CITY OF PHILADELPHIA et al: (Supreme Court of Pennsylvania. May 23, 1914.)

1. MUNICIPAL CORPORATIONS (§ 995*)-PAYMENT OF SALARIES INJUNCTION-WANT OF APPROPRIATION.

City officials will be enjoined at the suit of rendered under act of July 22, 1913 (P. L. 879), a taxpayer from paying salaries for services creating a division of housing and sanitation in

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