The jurisdiction of this court does not extend in a proceeding of this kind further than to direct a supplemental inventory to be filed. The values of the articles so inventoried to be fixed in accordance with the laws relating to appraisement of decedents' estates subject to exceptions. In Langston's Estate, 16 Phila., at page 369, President Judge Hanna of the Orphans' Court says: "He is only bound to inventory and appraise the goods and chattels so far as he may know and ascertain them. He has a right to exercise some discretion as to how far he will make himself, prima facie, liable to the parties interested. And if in good faith he should decline to file an inventory and appraisement of personal estate alleged to belong to decedent, but of which he has no knowledge, nor possession, nor satisfactory evidence, the parties who allege the contrary should be left to their appropriate remedy, to wit, to surcharge the executor upon the filing and settlement of his account." The Act of March 15, 1832, P. L. 135, Section 15, requires the executor Exceptions to inventory. In the Or-" to make a true and perfect inventory phans' Court of Lackawanna County. No. 762, Year 1912. C. P. O'Malley, for exceptant. of all the goods, chattels and credits of the deceased so far as he may know or ascertain them; section 26 requires him to cause a just appraisement to be made of such goods, chattels and credits; sections 22 and 23 of the Act of March H. S. Alworth, for executor. September 13, 1915. Opinion by 29, 1893, P. L. 190, provides for the reSANDO, P. J. moval of an executor, on application of The decedent, Elizabeth Gaul, died on any one interested, for neglecting or November 5, 1912, and letters testamen- refusing to exhibit a true and perfect tary were granted to Daniel H. Robert- inventory. Section 3 of the Act of Febson, who filed an inventory in the reg-ruary 24, 1834, P. L. 70, provides, under ister's office on January 25, 1915, to which exceptions have been filed. The exceptants claim the right of this Court upon the proceedings had in this case to determine the value of personal property which exceptants claim was the property of the estate of the decedent and also to fix a value of the good-will of a licensed hotel property owned by the decedent and conducted since her death by the accountant. No adjudicated cases or authorities have been cited by counsel for the exceptants to sustain or justify this contention. certain circumstances, for the filing of additional inventories: Now, September 13, 1915, we order and direct a supplemental appraisement to be filed by Daniel H. Robertson, the executor, in the register's office within fifteen days from this date, embracing all the estates omitted from the inventory already filed, which is within the knowledge of the executor, and we order and direct him to pay the costs of this proceeding. Common Pleas-- Law, Rago v. Federation of Sick Benefit Societies. Insurance societies - Appointing Insurance commissioner as agent-Failure to appoint-Validity of service-Act of June 25, 1895. A foreign Beneficial Insurance Society engaged in business in Pennsylvania without appointing the Insurance Commissioner its agent upon whom service could be made as required by the Act of June 25, 1895. In a suit brought against the society, service was made on the Insurance Commissioner. Held, that the service was valid, as the society could not take advantage of its own delinquency in failing to appoint him as agent, as required by the Act of Assembly. Rule to strike off service of writ and judgment. C. P. of Allegheny County. J. C. Sherriff, for plaintiff. May 15, 1915. Opinion by Ford, J. This is a rule, er parte defendant, to show cause why the service of the writ and judgment entered in default should not be stricken off. The statement of claim sets forth that the defendant is a corporation created by the laws of the State of Connecticut, duly registered in the State of Pennsylvania, and authorized to transact business therein. The sheriff's return, made January 24, 1913, shows acceptance of service of the summons by Samuel W. McCulloch, Deputy Insurance Commissioner, "in so far as I have authority under the law. The Society not having been duly registered in this office and not having officially designated the Insurance Commissioner as its attorney." Subsequently, on April 15, 1913, judgment was entered in default of an affidavit of defense. On June 20, 1914, the defendant moved the Court to strike off the service of the writ and set aside the judgment, for the reason, inter alia, that the Sheriff's return does not set forth that the acceptance of the Deputy was made in the absence of the Insurance Commissioner. By leave of Court, the return was amended so as to show that at the time of the service the Commissioner was absent and his duties were performed by the Deputy. The defendant further alleges that it does not appear, either by the plaintiff's statement or the Sheriff's return, that the defendant is a foreign corporation doing business in this State, and avers that the defendant is a foreign corporation but is not doing business in the State of Pennsylvania, and therefore not required to register in the State Department. The reasons, though certain facts are set forth, are not verified by affidavit. The sixth paragraph alleges that at the time of service the defendant company had agents in this State upon whom service could have been made, implying the defendant was engaged in business in this State and herein had agents acting in its behalf. To the rule to show cause, the plaintiff filed an answer in which he says that the defendant is a fraternal or relief society, organized and existing under the laws of the State of Connecticut; that it was, and had been, doing business in this State; organized and maintained branch or subordinate society, one at Duquesne, in this county, of which the plaintiff's decedent was a member; employed agents, solicited insurance, issued certificates or policies of insurance, and otherwise conducted business in the State. To plaintiff's answer, defendant made no reply. No testimony was taken in support of this rule, but from the averments contained in the statement of claim, the reasons in support of the rule and answer thereto, it appears that the defendant is a foreign corporation; was doing. business in this State; and had not appointed the Insurance Commissioner as its attorney upon whom processes might be served. The question to be determined is, whether the return, as amended, shows service of the writ in the manner required by law, and involves a consideration of the Act of June 25, 1895, P. L. 280. Section of the Act provides, "that I whether such appointment has been so filed or not; Commonwealth v. Railway Mail Association, 33 Pa. County Court, 529. If an insurance company is doing business in this State, it cannot take advantage of its own violation of the law to escape service. all fraternal, beneficial and relief societies... now doing business or hereafter admitted to do business within the State, and not having its principal office within the State, and not being organized under the laws of the State, shall appoint in writing the Commissioner of Insurance, or his successor in office, to be its true and lawful attorney, upon whom all lawful processes in action or proceeding may be served, and in such writing shall agree that any lawful process against it which is served on said attorney shall be of the same legal force and validity as if served upon the association. When legal process against any such association is served upon such Commissioner, he shall immediately notify the association of such service by letter prepaid. . . . It does not appear that the Commissioner notified the defendants as required by the act. It may be presumed that he performed his duty. If so, the delay in making application to set aside the service should be explained. The obligation to file a writing appointing the Commissioner of Insurance as its attorney is imposed for the protection of the citizens dealing with the society, and is a condition precedent to the right of the society to do business in this State. A fraternal, beneficial or relief society will not be permitted to relieve itself from liability by pleading its failure to comply with the requirements of the Act of Assembly. The law presumes that to have been done which the law and the rights of the parties contracting with the company required to be done. In Sparks v. National Masonic Association, 73 Fed., 277, it was held that when, by the statutes of a state, an insurance company transacting business in such state is required to file with a designated officer of the state a written appointment of such officer as the person upon whom process directed against such company may be served, such officer becomes, from the fact of its transacting business therein, the representative of the company with regard to the service of such process, irrespective of In the case at bar, the defendant is a foreign fraternal or beneficial society doing business in this State, and cannot set up that it had not appointed the Commissioner of Insurance as its attorney upon whom service of process might be made, and thereby defeat the jurisdiction of the Courts of this State. If it were otherwise, it would be possible for an insurance company doing business in this State to place itself beyond the reach of processes and prevent an action in this State by a citizen with whom it had contracted. The rule is discharged. Kunkle v. Buncke. Attachment execution - Arbitration by garnishee-Jurisdiction. In an attachment execution, the plaintiff and the garnishee arbitrated the question at issue under a plea of nulla bona. Held, that the arbitration proceedings should be set aside, as the arbitration law does not apply to an attachment execution, and as the want of jurisdiction applied to the subjectmatter, it could be waived by the garnishee. Sur rule to strike off rule to arbitrate and proceedings thereon. C. P. of Allegheny Co. July Term, 1914, No. 2182. L. P. Monahan and Ache & Wassell, for plaintiff. M. H. Stevenson, for defendant. It appears from the record in this case that an execution attachment was served on the Home of the Good Shepherd, which appeared and pleaded nulla bona. Thereupon the plaintiff in the execution attachment took out a rule to arbitrate and served it upon counsel for the garnishee, who accepted service of the rule and waived the time required by the act, and joined in the choosing of arbitrators, which was done without the prothonotary taking any part therein, Legal Miscellany. Without Remedy? FREDERIC CUNNINGHAM, IN "CASE AND and the time was set for hearing, and Shall We Continue to be Drowned at Sea afterwards that time was continued by agreement of counsel in writing, and the arbitrators then met and took testimony, and adjourned; and at the adjourned Some of the crude and antiquated meeting the question of jurisdiction was doctrines of the common law of Engfirst raised by the garnishee. The gar- land persist, beyond belief, in this progarland nishee then took this rule to set aside gressive and enlightened country of ours, the rule to arbitrate, on the ground that and this is especially so in the law adthe act as to arbitration does not apply ministered in the Federal courts, beto an execution attachment. That an cause Congress is so much engrossed in execution attachment is not "a civil suit the discussion and enactment of laws or action" within the meaning of the dealing with present novel and politically urgent demands of the people that it has no time for legislation in the nature of law reforms, for correcting defects in the law, which have existed for centuries. In this respect Congress often lags for years behind the legislatures of the states. arbitration act is decided in the case of Stranahan v. Stranahan, 146 Pa., 44, and it is not claimed by the plaintiff that the arbitration law does apply to such a case. The plaintiff contends, however, that the action of the garnishee in joining in the choosing of arbitrators and attending, without objection, a meeting where testimony was taken, constitutes a waiver of any right to object to the jurisdiction. The plaintiff cites on this subject Miller 2. Cockins, 239 Pa., 558, and other like cases. These are, however, cases where the want of jurisdiction which was waived was not jurisdiction of the subject-matter, but of the person of the defendant. The want of jurisdiction in this case is not jurisdiction of the parties, but of the subject-matter. In such case the want of jurisdiction may be taken advantage of at any time. It is also contended by the plaintiff that the action of the parties above stated amounted to an agreement to an amicable reference of the matter in question. We are of opinion, however, that even if it did amount to that, the matter in dispute could not be arbitrated even by agreement, for the reasons pointed out in Stranahan v. Stranahan, supra, namely, that the act of 1836 in regard to execution attachment points out specifically the mode to be pursued in prosecuting them, and that that mode must be strictly followed. We are, therefore, of opinion that the proceedings are invalid, and the rule should be made absolute. Rule made absolute. For instance, when the horrible catastrophe of the Titanic, sunk by collision with an iceberg in mid-ocean, occurred in April, 1912, with fearful loss of life, the public was amazed to find that, no matter how gross the negligence of her owners may have been, even if the be proved, the representatives and famigrossest negligence on their part could lies of the victims who were drowned had no right of action against the shipUnited States or of the several states, owners in any of the courts of the to recover for their loss, and, what is more, though three years have elapsed since then, and at each session of Congress a bill has been presented to remedy this defect, no law has been enacted. A great wrong of this sort still remains, in this great country, without a remedy. Now, how has this come about? Through a technicality of the old common law of England, brought over with us, and never corrected by legislation in Congress. If these victims had been mangled and maimed, and had lived, they could have sued for their injuries; but the common law gave no remedy, either to a man's estate or to his dependent family, for that greatest of all injuries, his neg ligent killing. The man's own claim was cut off by his death, under the maxim, Actio personalis moritur cum persona (a personal action dies with the person), and it was held that as his own right of action was put an end to by his death, and merged in the felony, his executor or administrator and his next of kin could not bring an action for the benefit of his estate or of themselves. In most of the states, statutes have been passed making the cause of action for his injuries survive, so that the executor or administrator can recover for the damages suffered by the deceased before death, and in most states, also, in addition, a new cause of action is given to the executor or administrator against the wrongdoer for the pecuniary loss which the victim's family has sustained by his death. If the catastrophe had occurred, therefore, within the territorial limits of a state, there would have been a remedy; but these state statutes have no force upon the high seas, out of the limits of the state, and as Congress, which alone has authority to pass laws governing injuries on American vessels on the high seas, has not acted and given a remedy by statute, no remedy exists. This defect in the common law was remedied in England as early as 1846 by the fatal accidents act, commonly known as Lord Campbell's act, upon which most of our state statutes on this subject are founded. For the past fifteen years at least, long before the Titanic disaster, in fact ever since the loss of La Bourgogne off Sable Island, in July, 1898, this subject has been agitated, and in March, 1900, a bill was introduced into Congress by Mr. Boutell, of Illinois, providing a remedy in the Federal courts for death by negligence on the high seas and Great Lakes; and more recently bills for this purpose have been introduced into Congress, and supported by committees of the American Bar Association and the Maritime Law Association of the United States, as yet without result, though their bill passed the House of Representatives at its last session, but failed to pass in the Senate. The failure of these bills to pass was due largely to the fact that they tried to do too much. The bill in the last Congress, as originally drawn, excluded trials by jury at common law, where the common law was competent to give a remedy, made the jurisdiction in admiralty exclusive, and so interfered with the jurisdiction of the state courts, and, in the form in which it finally passed the House, tried to make a change in our laws limiting the liability of shipowners. I thoroughly believe that if a simple bill making the right of action for injuries received by the deceased before his death survive in favor of his executor or administrator, and providing, in addition, for damages in such action for his dependent family, to compensate them for their loss, had been presented, it would have passed Congress, and would now be a law under which the executors and administrators of the passengers lost on the Lusitania could hold the Cunard Company liable for their negligent navigation, if that can be proved. As it is, they are in the same helpless condition, without legal redress, as were those lost on the Titanic. I append in a note a bill which I * A bill to provide for the survival and bringing of actions for injuries on the high seas and elsewhere, resulting in loss of life and for other purposes. Section 1. Actions of tort or damage for injuries causing death shall survive, and may be brought or prosecuted in the courts of the United States by and in the name of the perbenefit of the husband or wife, heirs, or next sonal representatives of the deceased, for the of kin of the deceased, whether the death was instantaneous or not, and whether it occurred on the high seas or elsewhere, and although the death shall have been caused under circumstances amounting to a felony; and such actions may be in rem or in personam in the admiralty wherever the deceased, if death had not ensued, could have brought such an action in admiralty. Section 2. The damages in such actions shall include compensation for the pecuniary injuries resulting from the death of the deceased to the person or persons for whose benefit the action is brought; but the recovery in respect of the death of any one person shall not exceed $5,000; and the action shall be begun within two years after the occurrence of the death in respect of which damages are sought, and not afterwards, provided that reasonable opportunity to secure jurisdiction has offered within that time. |