third assignment error in Pennsylvania

1944The following is from the opinion of -Mr. Justice Moschzisker (p. 547): “The third assignment of error complains because the court below, by approving defendant’s bill of costs, in effect awarded its counsel a fee of $100; and, as to this, plaintiffs very properly state that, albeit ‘the amount is moderate,’ its allowance was ‘beyond the power of the court.’ Winton’s App., 87 Pa. 77, 84-5 , asserts that while, in certain rare cases (for example, where professional services have been rendered to protect or enhance a common fund or for the actual financial benefit of all the parties to a conflic

1920The third assignment of error complains because the court below, by approving defendant’s bill of costs, in effect awarded its counsel a fee of $100; and, as to this, plaintiffs very properly state that, albeit “the amount is moderate,” its allowance was “beyond the power of the court.” Winton’s App., 87 Pa. 77, 84-5 , asserts that while, in certain rare cases (for example, where professional services have been rendered to protect or enhance a common fund or for,the actual financial benefit of all the parties to a conflict), equity permits the award of compensation to attorneys, yet in ordinar

1943Co., 141 Pa. Superior Ct. 264, 265 , 14 A. 2d 593 , the appellant’s third assignment of error as to an erroneous portion of a charge relating to notice and constructive notice was overruled when it was found that the appellant took only a general exception to the charge, as in this case, and failed to request more specific instructions at the time of the trial.

1943Co., 141 Pa. Superior Ct. 264, 265 , 14 A. 2d 593 , the appellant’s third assignment of error as to an erroneous portion of a charge relating to notice and constructive notice was overruled when it was found that the appellant took only a general exception to the charge, as in this case, and failed to request more specific instructions at the time of the trial.

1975In Witherspoon v. Illinois, 391 U.S. 510 , 88 S.Ct. 1770 , 20 L.Ed.2d 776 (1968) the Supreme Court of the United States held “that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.

1975In Witherspoon v. Illinois, 391 U.S. 510 , 88 S.Ct. 1770 , 20 L.Ed.2d 776 (1968) the Supreme Court of the United States held “that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.

1950The chief burden of defendant’s complaint on this appeal from the refusal of his motion for a new trial is that the relaxing in the more recent decisions of the Supreme Court and of this Court of the rule in Watson v. Commonwealth, 95 Pa. 118 , in respect of the testimony of an accomplice, “should be reviewed.” In the most recent opinion on the question the Supreme Court, speaking through Mr. Chief Justice Maxey, in Commonwealth v. Bubna, 357 Pa. 51, 66, 67 , 53 A. 2d 101 , said: “The third assignment of error relates to the charge of the court on the subject of the amount of credibility to be

1949The chief burden of defendant's complaint on this appeal from the refusal of his motion for a new trial is that the relaxing in the more recent decisions of the Supreme Court and of this Court of the rule in Watson v. Commonwealth , 95 Pa. 418 , in respect of the testimony of an accomplice, "should be reviewed." In the most recent opinion on the question the Supreme Court, speaking through Mr. Chief Justice MAXEY, in Commonwealth v. Bubna , 357 Pa. 51 , 66 , 67 , 53 A.2d 104 , said: "The third assignment of error relates to the charge of the court on the subject of the amount of credibility to

1944We find no merit in the third assignment of error which complains of that part of the sentence removing appellant Waxmonsky from the office of school director. *261 The argument in support thereof is predicated on the statement in Fudula’s Petition, 297 Pa. 364 , at page 367, 147 A. 67 , at page 68, where it is said: “Each official term is a separate entity and a citizen whom the electors have chosen to a public office cannot be deprived thereof because of nonperformance or misperformance of duty in some other office or during a prior term of the same office.” Waxmonsky had been appointed a sc

1944We find no merit in the third assignment of error which complains of that part of the sentence removing appellant Waxmonsky from the office of school director. *261 The argument in support thereof is predicated on the statement in Fudula’s Petition, 297 Pa. 364 , at page 367, 147 A. 67 , at page 68, where it is said: “Each official term is a separate entity and a citizen whom the electors have chosen to a public office cannot be deprived thereof because of nonperformance or misperformance of duty in some other office or during a prior term of the same office.” Waxmonsky had been appointed a sc

1940The concept of malice as involved in actions for interference with contractual relations is well expressed in Klauder v. Cregar et al., 327 Pa. 1 , at page 7, 192 A. 667 , at page 670: “ ‘When one has knowledge of the contract rights of another his wrongful inducement of a breach thereof is a wilful destruction of the property of another and cannot be justified on the theory that it enhances and advances the business interests of the wrongdoer’: Sorenson v. Chevrolet Motor Co., 171 Minn. 260, 266 , 214 N. W. 754 . ‘A violation of legal right committed knowingly is a cause of action, and it is

1940The concept of malice as involved in actions for interference with contractual relations is well expressed in Klauder v. Cregar et al., 327 Pa. 1 , at page 7, 192 A. 667 , at page 670: “ ‘When one has knowledge of the contract rights of another his wrongful inducement of a breach thereof is a wilful destruction of the property of another and cannot be justified on the theory that it enhances and advances the business interests of the wrongdoer’: Sorenson v. Chevrolet Motor Co., 171 Minn. 260, 266 , 214 N. W. 754 . ‘A violation of legal right committed knowingly is a cause of action, and it is

1940The concept of malice as involved in actions for interference with contractual relations is well expressed in Klauder v. Cregar et al., 327 Pa. 1 , at page 7, 192 A. 667 , at page 670: “ ‘When one has knowledge of the contract rights of another his wrongful inducement of a breach thereof is a wilful destruction of the property of another and cannot be justified on the theory that it enhances and advances the business interests of the wrongdoer’: Sorenson v. Chevrolet Motor Co., 171 Minn. 260, 266 , 214 N. W. 754 . ‘A violation of legal right committed knowingly is a cause of action, and it is

1940The concept of malice as involved in actions for interference with contractual relations is well expressed in Klauder v. Cregar et al., 327 Pa. 1 , at page 7, 192 A. 667 , at page 670: “ ‘When one has knowledge of the contract rights of another his wrongful inducement of a breach thereof is a wilful destruction of the property of another and cannot be justified on the theory that it enhances and advances the business interests of the wrongdoer’: Sorenson v. Chevrolet Motor Co., 171 Minn. 260, 266 , 214 N. W. 754 . ‘A violation of legal right committed knowingly is a cause of action, and it is

1937One of the distinctions between this case and that of Bruce v. Loeb & Loeb, 78 Pa. Superior Ct. 22, cited for appellants, is that in the Bruce case the purchaser offered to surrender the contract and demanded the return of his money.

1936The sentence of imprisonment for the term of the natural life of appellant imposed March 1, 1935 is vacated and the sentence upon Bill No. 157, February Sessions, 1934, to the state penitentiary of not less than ten years and not more than twenty years, at the expiration of sentence imposed on Bill No. 152, February Sessions, 1934, is reinstated. 1 People v. Gowasky, 244 N. Y. 451 , 155 N. E. 737 ; Kinney v. State, 45 Texas Crim.

1936The sentence of imprisonment for the term of the natural life of appellant imposed March 1, 1935 is vacated and the sentence upon Bill No. 157, February Sessions, 1934, to the state penitentiary of not less than ten years and not more than twenty years, at the expiration of sentence imposed on Bill No. 152, February Sessions, 1934, is reinstated. 1 People v. Gowasky, 244 N. Y. 451 , 155 N. E. 737 ; Kinney v. State, 45 Texas Crim.

1936Rock, Executor, v. Cauffiel, 271 Pa. 560 , 115 A. 843 .

1936Rock, Executor, v. Cauffiel, 271 Pa. 560 , 115 A. 843 .

1934The mere fact that the books were kept in ledger form is no valid objection: Hoover v. Gehr, 62 Pa. 136 .

1931The third assignment of error relates to the refusal of the court to affirm the third point, as follows: “Care at street crossings is the highest duty of motorists.” The answer of the court was: “The third point has been covered.” This third point is taken verbatim from the language of this court in Newman v. Protective Motor *323 Service Co., 298 Pa. 509 .

1931In that case, Mr. Justice Schaffer, speaking for the court, said: “We have laid down the rule in a number of cases that at crossings the drivers of all motor vehicles must be highly vigilant and maintain such control that, on the shortest possible notice, they can stop their cars so as to prevent danger to pedestrians having the right to cross the streets at crossings and to rely on the drivers of automobiles not to run them down, and we have categorically said that, ‘Care at street crossings is the highest duty of motorists’: Johnson v. French, 291 Pa. 437, 439 ; Gilles v. Leas, 282 Pa. 318 .

1931In that case, Mr. Justice Schaffer, speaking for the court, said: “We have laid down the rule in a number of cases that at crossings the drivers of all motor vehicles must be highly vigilant and maintain such control that, on the shortest possible notice, they can stop their cars so as to prevent danger to pedestrians having the right to cross the streets at crossings and to rely on the drivers of automobiles not to run them down, and we have categorically said that, ‘Care at street crossings is the highest duty of motorists’: Johnson v. French, 291 Pa. 437, 439 ; Gilles v. Leas, 282 Pa. 318 .

1930The court below in its charge to the jury on the question of reasonable doubt stated: “A reasonable doubt is a doubt for which you can give a reason.” This definition was clearly error,—see Commonwealth v. Baker, 93 Pa. Superior Ct. 360 , and Commonwealth v. Ariff, 97 Pa. Superior Ct. 283 .

1930The court below in its charge to the jury on the question of reasonable doubt stated: “A reasonable doubt is a doubt for which you can give a reason.” This definition was clearly error,—see Commonwealth v. Baker, 93 Pa. Superior Ct. 360 , and Commonwealth v. Ariff, 97 Pa. Superior Ct. 283 .

1927It is well settled in this jurisdiction that where at the trial of an action for libel or slander there has been no attack of any kind, open or covert, on plain *120 tiff’s reputation, evidence of his good character is not admissible: Burkhardt v. North American Co., 214 Pa. 39 ; Clark v. North American Co., 203 Pa. 346 ; Chubb v. Gsell, 34 Pa. 114 .

1927In the cases relied upon by the appellant (Com. v. Norris, 87 Pa. Superior Ct. 66, 76 ; Com. v. Chester, 77 Pa. Superior Ct. 388 ; Com. v. Viscuso, 82 Pa. Superior Ct. 403 ), the instructions to the jury were erroneous and the cor *409 rect rule was stated in the opinion of this court; but it was not intended thereby to hold that an otherwise correct charge was reversible because it did not state in identical words that the burden of proving a defendant guilty beyond a reasonable doubt rested on the Commonwealth throughout the trial, if such was its plain import. (7) On mature consideration, w

1927The $1,250 referred to by *378 the trial judge is made up of two items, a monthly installment of rent, amounting to $125, and another item of $1,125, accruing under a provision in the lease to the effect that, in case of default in payment of any monthly installment of rent in advance, the rent for the whole term would become due and payable, — a lawful provision: Teufel v. Rowan, 179 Pa. 408 ; Johns v. Winters, 251 Pa. 169, 173, 174 .

1927It is well settled in this jurisdiction that where at the trial of an action for libel or slander there has been no attack of any kind, open or covert, on plain *120 tiff’s reputation, evidence of his good character is not admissible: Burkhardt v. North American Co., 214 Pa. 39 ; Clark v. North American Co., 203 Pa. 346 ; Chubb v. Gsell, 34 Pa. 114 .

1927It is well settled in this jurisdiction that where at the trial of an action for libel or slander there has been no attack of any kind, open or covert, on plain *120 tiff’s reputation, evidence of his good character is not admissible: Burkhardt v. North American Co., 214 Pa. 39 ; Clark v. North American Co., 203 Pa. 346 ; Chubb v. Gsell, 34 Pa. 114 .

1927In the cases relied upon by the appellant (Com. v. Norris, 87 Pa. Superior Ct. 66, 76 ; Com. v. Chester, 77 Pa. Superior Ct. 388 ; Com. v. Viscuso, 82 Pa. Superior Ct. 403 ), the instructions to the jury were erroneous and the cor *409 rect rule was stated in the opinion of this court; but it was not intended thereby to hold that an otherwise correct charge was reversible because it did not state in identical words that the burden of proving a defendant guilty beyond a reasonable doubt rested on the Commonwealth throughout the trial, if such was its plain import. (7) On mature consideration, w

1927In the cases relied upon by the appellant (Com. v. Norris, 87 Pa. Superior Ct. 66, 76 ; Com. v. Chester, 77 Pa. Superior Ct. 388 ; Com. v. Viscuso, 82 Pa. Superior Ct. 403 ), the instructions to the jury were erroneous and the cor *409 rect rule was stated in the opinion of this court; but it was not intended thereby to hold that an otherwise correct charge was reversible because it did not state in identical words that the burden of proving a defendant guilty beyond a reasonable doubt rested on the Commonwealth throughout the trial, if such was its plain import. (7) On mature consideration, w

1925In the case of Telephone Co. v. Deakyne, 73 Pa. Superior Ct. 158 , wherein the telephone company brought an action of assumpsit on a written contract for an amount due for telephone service, the court said: “There is no merit in the third assignment of error.

1924Regarding similarity in names of corporations buying and selling, and unchanged interests, the case comes within Herring v. Weinroth, 61 Pa. Superior Ct. 529 , and Atlas Portland Cement Co. v. American Brick and Clay Manufacturing Co., 280 Pa. 449 .

1924Regarding similarity in names of corporations buying and selling, and unchanged interests, the case comes within Herring v. Weinroth, 61 Pa. Superior Ct. 529 , and Atlas Portland Cement Co. v. American Brick and Clay Manufacturing Co., 280 Pa. 449 .

1921This imposed upon the latter too high a degree of care; for while a chauffeur at public crossings must have his car under such control as to be able to stop on the shortest possible notice (Anderson v. Wood, 264 Pa. 98 ; Virgilio v. Walker, 254 Pa. 241 ), he is not required to drive so he can stop instantly.