is not a change of occupation from that of gardener to that of a user or handler of fireworks.

tive manager, was authorized to accept money paid to the society by cash or by check to its order, and his misappropriation of funds so paid was the loss of the society.

[Ed. Note.-For other cases, see Building and Loan Associations, Cent. Dig. § 29.] 2. BANKS AND BANKING 109(2) PRESIDENT OF LOAN SOCIETY INDORSEMENT OF BILLS OR NOTES.

comes from the directors, he may indorse bills Where the authority of a bank president or notes payable to it.

[Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. § 259.]

3. BANKS AND BANKING 138-DEPOSITSPAYMENT ON CHECK-LIABILITY TO DEPOSITOR.

Where a depositor drew his check upon defendant bank to the order of a loan society, whose president and chief executive officer inbank was not liable, as the proceeds were paid dorsed it and misappropriated the proceeds, the to the society in accordance with the terms of the check.

[Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. § 398-405.]

Appeal from Court of Common Pleas, Philadelphia County.

Assumpsit for a bank deposit by Harry J. Schwehm against the Chelten Trust Company. Verdict for plaintiff for $5,294.50, and judgment thereon, and defendant appeals. Reversed, and judgment entered for defendant.

The other ground of defense, that the injury was caused by voluntary exposure to unnecessary danger, rests upon the determination of a motion to correct the finding by erasing therefrom the finding that the death was not from any cause excepted in the policy, and by substituting therefor a proposed finding that the plaintiff offered no evidence to show that decedent did not voluntarily expose himself to unnecessary danger. It is, however, unnecessary to follow the defendant's argument any further, because the finding of the trial court is supported by the evidence, and the defense of voluntary exposure to unnecessary danger is disposed of on the merits in the plaintiff's favor. There was evidence tending to show that the bombs were ordinarily safe, that from one to two minutes usually elapsed between the lighting of the fuse and the explosion of the charge which threw the bomb upward, and that the decedent, his employer, and members of the employer's family had set off great numbers of them at Independence Day celebrations. This was enough to show that the act of setting off one of these bombs in the usual way was not a voluntary exposure to unnecessary danger. Argued before MESTREZAT, POTTER, [3] Then the question remained whether|STEWART, MOSCHZISKER, and FRAZJohnson attempted to set the bomb off in some unusual way, or in some other way voluntarily exposed himself to unnecessary danger in setting it off. On this point his declarations made while being taken to the hospital are relevant and admissible, and they make it more probable than otherwise that the accident occurred because of a defective quick-firing fuse. Defendant excepted to the admission of these declarations, and now makes the claim that they were too vague and indefinite to be admitted in evidence. This, however, was the fault of the witness to whom the declarations were made, who was obliged to give the substance of what was said because he could not remember the words. Taking these disconnected phrases as expressing the substance of Johnson's declarations, there is no difficulty whatever in supporting the finding of the trial court that the death was not from any cause excepted in the policy.

ER, JJ.

Chas. C. Norris, Jr., of Philadelphia, for appellant. Julius C. Levi and David Mandel, Jr., both of Philadelphia, for appellee.

POTTER, J. The plaintiff in this case, who was a depositor with the Chelten Trust Company, drew his check upon that institution for the sum of $5,002, payable to the order of Federal Loan Society. The check was indorsed, "Federal Loan Society, H. W. Stoll, President, Jos. R. Friedman," and was cashed by the Franklin Trust Company, and collected by the latter from defendant, through the Corn Exchange National Bank, and charged by defendant against plaintiff's deposit account.

[1] Plaintiff claimed that Stoll, who was president of the Federal Loan Society, had no authority to indorse the check in the name of the society, that his indorsement did not transfer title to it, and that defendant's ac

There is no error. The other Judges con- tion in paying it, and charging it against his curred.

(257 Pa. 76)

SCHWEHM v. CHELTEN TRUST CO. (Supreme Court of Pennsylvania.

March 12,

account, was not binding upon him. He therefore brought this suit to recover the amount so charged. At the trial, a request for binding instructions in favor of defendant was refused, and the jury were instructed to render a verdict for plaintiff for the full amount of the claim. From the judgment 1. BUILDING AND LOAN ASSOCIATIONS thereon entered, defendant has appealed. Its 23(4) AUTHORITY OF PRESIDENT OF LOAN counsel contend that under the by-laws of the SOCIETY-MISAPPROPRIATION-LIABILITY. The president of a loan society, whom the Federal Loan Society, the president was conby-laws made the chief executive officer and ac-stituted the general manager of the business

1917.)

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

even where his authority comes from the directors, the president of a bank may indorse bills or notes payable to it. And it would seem that he has an implied power to indorse and transfer its negotiable paper. 1 Daniels, Neg. Inst. § 394.

of the corporation, and this necessarily gave him the power to indorse its commercial paper. It appears from the record that the by-laws were not silent as to the president's authority, but they provided that he should be the chief executive officer of the company and should "have general and active manage- It should be remembered that in the presment of the business of the company," should ent case, in so far as the record shows, the "have general supervision and direction of validity of the indorsement was not quesall the other officers of the company," and see tioned by the Federal Loan Society, the that their duties were properly performed, payee of the check. It is the drawer of the should make annually to the board of direc- check who complains. It does not appear tors a report of the operations of the com- that the corporation has denied that it was pany for the fiscal year, and from time to bound by the indorsement of its president, time report to them such matters as the in- or that it has refused to carry out the conterests of the company might require to be tract for which the check constituted the brought to their notice, and should "have consideration. What the transaction was, the general powers and supervision and man- is not very clear, but apparently it was a agement usually vested in the office of the purchase of stock. Plaintiff testified that he president of a corporation." Broader powers had not received the stock, but did not say in the management of the business could that the corporation had refused to issue it hardly have been bestowed. The president to him, nor did he say that he had made dewas not only authorized to act for the com- mand for it. Under the facts shown, we are pany, but was to see that all other officers clearly of opinion that payment of the check discharged their duties. Counsel for plain-to the president of the company was payment tiff, however, contend that the power of the to the corporation.

(257 Pa. 17) O'MALLEY et al. v. PUBLIC LEDGER CO. (Supreme Court of Pennsylvania. March 5, 1917.) 1. MUNICIPAL CORPORATIONS

president was limited by two provisions The fifth and sixth assignments of error of the by-laws. The first directs the treas- are sustained. The judgment is reversed, urer to "deposit all money and other valu- and is here entered for defendant. able effects in the name and to the credit of the company in such depositories as may be designated by the board of directors." This provision, however, only relates to the duties of the treasurer, who is expressly placed under the "general supervision and 706(4)-EVIdirection" of the president. It puts no limi- DENCE OF OWNERSHIP-INJURIES ON STREET. tation on the powers conferred on the presiIn an action for personal injuries when dent himself. The other provision is that struck by a motor truck alleged to be the property of defendant company, where it appeared "all checks, drafts or orders for the payment that defendant's name was painted upon the shall be signed by the treasurer and counter-car containing bundles of newspapers, testimony signed by the president." This refers only to instruments for the payment of money by the corporation, not to the indorsement or transfer of instruments of which the corporation is not the maker, but the payee. It does not limit the power of the president as to the latter.

of a policeman that shortly before the accident he saw a car of such description delivering bundles of newspapers, and knew it because he had often seen it in the neighborhood delivering newspapers, and that in the particular case his attention had been attracted to the driver's hurry in tossing papers from the car, was admissible.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1518.]

2. APPEAL AND ERROR 969-JURY 149 -QUESTION FOR JURY-WITHDRAWAL OF JU

ROR.

In such action, where plaintiff husband testified as to conversation on day "when we were awarded the verdict" in former trial, where there was no effort to lead him to the objectionable remark, and where the jury were instructed to disregard it, the refusal of a continuance was within trial court's discretion.

[2, 3] Under the by-laws, as noted above, the president was made the "chief executive officer" and the general and active manager of the business of the company. He had control over every other officer of the company, and power to direct the disburse ment of its funds. This authority was ample to authorize him to accept money paid to the company, whether in cash or in the form of a check payable to the order of the company. If he misappropriated funds paid in good faith to him as the representative of the company, the loss must be that of the corporation that authorized him to act, and held him out to the public as its chief of- In action for personal injury when struck by ficer and general agent. As the power was a motor truck, alleged to belong to defendant delegated to the president in the by-laws, the ownership of the car and its operation in newspaper company, held, on the evidence, that there is no question here, as to acquiescence, the company's service was for the jury. by the board of directors. No action upon [Ed. Note. For other cases, see Municipal the part of the directors was necessary. But Corporations, Cent. Dig. § 1518.]

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3815-3848; Jury, Cent. Dig. §§ 635-637.]

706(6)—USE

3. MUNICIPAL CORPORATIONS
OF STREET PERSONAL INJURY-QUESTION
FOR JURY.

Appeal from Court of Common Pleas, Phil- that he had held a conversation with anothadelphia County.

Trespass for damages for personal injury by Catharine O'Malley and John O'Malley against the Public Ledger Company. Verdict for plaintiff John O'Malley for $750, and for Catharine O'Malley for $3,000, reduced by the court to $500 and $2,000, respective ly, with judgment thereon, and defendant appeals. Affirmed.

Argued before MESTREZAT, POTTER, STEWART, MOSCHZISKER, and FRAZER, JJ.

er officer concerning the accident, right after it happened, would not militate against the admission of his testimony. It may be well to note, however, that the details of this conversation were not allowed in evidence. Other witnesses who saw the accident had already testified that the car which injured Mrs. O'Malley was a small machine with the name of the Public Ledger painted thereon, containing bundles of newspapers. The policeman was permitted to state that, very shortly after the time fixed by the for

Robert P. Shick and Winfield W. Craw-mer witnesses, he saw an automobile of like ford, both of Philadelphia, for appellant. Bertram D. Rearick, of Philadelphia, for ap

pellees.

description delivering bundles of newspapers cident; that he knew the car, having seen about 41⁄2 squares from the place of the acit in the neighborhood morning after morning, on a like errand; and that, on this parMOSCHZISKER, J. John O'Malley and ticular occasion, the driver attracted attenCatharine, his wife, sued to recover for per- tion by his seeming hurry, when he tossed sonal injuries to the latter; verdicts were out papers upon the corner where the witrendered in their favor, upon which judg-ness was standing, without stopping his maments were entered; the defendant has appealed.

hicle belonging to and, at the time, in the service of the defendant. Bowling v. Rob erts, 235 Pa. 89, 83 Atl. 600; Hershinger v. Penna. R. R. Co., 25 Pa. Super. Ct. 147.

chine. Although this testimony, by itself, would have but little weight, yet, in connecOn January 8, 1915, between 5 and 5:30 a. tion with other evidence in the case, it was m., Mrs. O'Malley was struck by a south- circumstantially relevant to identify the auward-bound automobile while crossing Twen-tomobile which caused the damage as a vetieth street, in the city of Philadelphia, at the south side of McClellan street, or about 150 feet from Moore street, the next thoroughfare to the north. The testimony relied upon by the plaintiffs, when viewed in the [2] While the trial judge might have withlight most favorable to them, is sufficient to drawn a juror because of the unfortunate sustain the following material findings: remark made by Mr. O'Malley when upon Just before leaving the sidewalk, Mrs. O'Mal- the stand, to the effect that he had a conley looked up and down Twentieth street versation with another man on the day and, seeing no vehicles approaching from ei"when we were awarded the verdict" (evither direction, she started slowly to cross dently referring to the verdict in a former eastward; in the center of that thoroughfare trial of the same cause), yet we cannot say there is a single car track, and, just before the refusal so to do constitutes reversible she reached the first rail of this track, she error. The trial had been on for three days; was struck by the automobile, which had there was no attempt on the part of counturned southward into Twentieth street from sel for the plaintiff to obtain an unfair adMoore street; the machine was being driv-vantage by leading on the witness to the oben at from 40 to 50 miles an hour, and came suddenly upon Mrs. O'Malley, without warning of any kind; she was knocked down, and subsequently, as a result of the accident, suffered a miscarriage and other injurious results; finally, the motor in question was owned by the Public Ledger Company and, at the time of the injury to Mrs. O'Malley, it was being operated in the defendant's

jectionable remark. On the contrary, it seems to have slipped out without any premeditated purpose, and, when this occurred, the judge at once warned the jurors entirely to disregard the incident; moreover, at the end of his charge, he repeated these instructions. In conclusion, we do not conceive it at all probable the remark in question had any effect prejudicial to the defendant; for if the jurors understood from it that there There are numerous assignments of er- had been a former finding in favor of the ror; but only a few of them require serious plaintiffs, it must be assumed they likewise consideration. To begin with, we have look-realized that this verdict had been set aside ed at the medical testimony with care, and

service.

feel that it is sufficient to connect Mrs.

O'Malley's impaired physical condition with the accident, and to justify the conclusion that her injuries followed as a result thereof. [1] We see no error in the admission of the testimony of the policeman, Jordan. He recalled the date of the occurrence under investigation; and the fact that his memory in this respect was aided by the circumstance

by the court.

[3] No part of the charge is assigned for error, and a careful reading thereof shows that all the testimony was properly and correctly submitted to the jurors, not only to find the relevant facts, but to draw their own inferences therefrom in determining the issues involved. Of course, there was testimony produced by the defendant militating against the evidence depended upon by the

plaintiffs to show the former's ownership of the car and that the machine was being operated in its service at the time of the accident; but this testimony was mostly oral, and hence it was for the jury to pass upon. The assignments of error are all overruled, and the judgments affirmed.

(257 Pa. 25)

SCOTT v. AMERICAN EXPRESS CO. (Supreme Court of Pennsylvania. March 5, 1917.)

1. WITNESSES 379(7)-IMPEACHMENT-CONTRADICTORY STATEMENTS.

juries by Elizabeth Scott, administratrix of the estate of Joseph P. Scott, deceased, and Elizabeth Scott, administratrix of the estate of Edward A. Scott, deceased, against the American Express Company. Verdict for plaintiff as administratrix of the estate of Edward A. Scott for $1,717, and as administratrix of her deceased son, Joseph P. Scott, for $12,540, and judgment thereon, motion for new trial denied, and defendant appeals. Reversed with a new venire.

Plaintiff's injuries consisted of compound fractures of both legs above the knees, lacerations and bruises of the scalp, arms and back. The credibility of a witness may be im- Two unsuccessful operations were performed peached by his previous statements inconsistent to secure unions of the fractures of the legs. with or contradictory to his testimony, including Plaintiff suffered extreme pain except when statements made in pleadings, where the omission in the inconsistent statement occurred when under the influence of opiates, and died as the occasion called upon him for disclosure. a result of such injuries over four months [Ed. Note.-For other cases, see Witnesses, after the accident. Cent. Dig. § 1251.] 2. WITNESSES

Argued before MESTREZAT, POTTER, 387-IMPEACHMENT-INCON- STEWART, MOSCHZISKER, and FRAZER,

SISTENT STATEMENTS-SWORN PLEADINGS. In an action against an express company for injury to an employé from the defective condition of the brakes and steering apparatus of its motor truck, defended on ground that the accident was caused by the intoxication of the driver, a fellow servant, where defendant's superintendent testified that he visited the driver after the accident, and he then showed signs of having been drinking, his cross-examination as to whether he had not sworn to answers in the driver's action in another court arising out of same accident which said nothing about the driver's intoxication, was erroneous, where under the rules of that court the facts constituting the defense were not required to be stated in the

answer.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. § 1228-1232.]

3. APPEAL AND ERROR 232(2)—ADMISSIBIL ITY OF EVIDENCE-OBJECTION.

Where the record was not clear as to the ground upon which objection to the cross-examination of a witness was based, the rule that on appeal a party complaining of the admission of

evidence in the court below will be confined to the specific objection there made, was not applicable.

JJ.

John Lewis Evans, John G. Johnson, and Thomas De Witt Cuyler, all of Philadelphia, for appellant. Francis M. McAdams and William H. Wilson, both of Philadelphia, for appellee.

FRAZER, J. This action was brought by Joseph P. Scott, a minor, and Edward A. Scott, his father, to recover damages for injuries sustained by the former, as a result of alleged negligence of defendant in permitting the brakes and steering apparatus on a motor truck, on which the minor was riding in the discharge of his duties, to become out of order and remain in a state of disrepair, which resulted in the machine becoming unmanageable in descending a street with some grade, and striking a telephone pole located along the highway. Joseph P. Scott died as a result of his injuries, and, upon the subsequent death of his father, Elizabeth Scott

[Ed. Note. For other cases, see Appeal and prosecuted the action to judgment as adminError, Cent. Dig. §§ 1430, 1431.]

The amount of a verdict will be reviewed by the Supreme Court under authority of Act May 20, 1891 (P. L. 101), only when so grossly excessive as to shock the sense of justice, and to show a clear abuse of the lower court's discretion in refusing to set it aside.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3860-3876, 3948.] 5. DEATH 99(3)—EXCESSIVE DAMAGES.

Verdicts of $1,717 awarded the father of injured minor employé, and $12,540 awarded the estate of the minor, were not excessive, where he suffered a compound fracture of both legs above the knees, lacerations and bruises of the scalp, arms and back, underwent two operations, and lived four months after the accident.

[Ed. Note.-For other cases, see Death, Cent. Dig. §§ 125, 126, 128.)

istratrix of their estates.

The deceased minor was employed by defendant to ride on its trucks and assist

drivers in handling and guarding express packages. The defense was that the accident was caused by the negligence of the driver, who, according to the evidence, had been tion at the time; which fact was known to drinking and was in an intoxicated condiYoung Scott. The trial judge submitted the case to the jury, in a charge to which no complaint is made, and there was a verdict on behalf of the father's estate for $1,717, and on behalf of the estate of the minor for $12,540. A motion for a new trial was dismissed by the court below, and defendant appealed.

We deem it unnecessary to refer in detail to the circumstances of the accident, since Appeal from Court of Common Pleas, Phil- the only questions argued before this court adelphia County. were as to the correctness of the action of Trespass for damages for personal in- the court in admitting certain evidence to

impeach the credibility of one of defendant's the record does it appear that the question witnesses, and whether or not the verdict on of intoxication was raised in the declaration behalf of the minor's estate was excessive. in either case. The answers in questions [1, 2] Superintendent Julier, of defendant admit the happening of the accident, but company, testified to visiting the hospital deny that either the brakes or steering apwithin two hours after the accident, and, in paratus were defective or out or order, or reply to a question by his own attorney, that the accident was the consequence of the stated he saw Carey, the driver, at that time failure of these parts of the truck to properly and his breath smelled as if he had been work, or of anything else for which defendant drinking. On cross-examination by plaintiff's was responsible. No necessity appears for counsel he was asked whether he had not the assertion or denial of the charge that the sworn to and signed answers in actions by driver had been drinking previous to the hapthe driver and another person against de- pening of the accident. fendant in the municipal court involving the same accident. Upon objection being made, counsel for plaintiff stated he wished to test the credibility of the witness, whereupon the objection was overruled. The witness then admitted he had signed and sworn to the papers, and that they contained no statement to the effect that the driver had been drinking, or was intoxicated. Defendant contends this testimony was improperly admitted and was extremely prejudicial to it, owing to the fact that the jury as laymen were likely to place undue weight on the omission, whereas, in fact, such omission was unimportant, and the statement unnecessary as a part of the pleadings in the case.

The rule is well settled that the credibility of a witness may be impeached by showing previously made statements inconsistent with, or contradictory to, his present testimony, and this includes inconsistent statements made in pleadings in the causes. Henry's Penna. Trial Evidence, § 65, and cases cited; Floyd v. Kulp Lumber Co., 222 Pa. 257, 71 Atl. 13; 2 Wigmore on Evidence, § 1066. To constitute grounds for discrediting a witness, however, the omission must be made at a time when the occasion was such that he was called upon to make the disclosure. It is only where the witness on a previous occasion was under some duty to speak the whole truth concerning the matter about which he now testifies that impeachment becomes permissible by showing an omission to state certain material facts included in his testimony. Royal Insurance Co. v. Beatty, 119 Pa. 6, 12 Atl. 607, 4 Am. St. Rep. 622; Huston's Estate, 167 Pa. 217, 31 Atl. 553. Consequently, in considering the competency of the evidence offered for the purpose of impeaching the witness, the scope of the answers filed in the municipal court of Philadelphia should be considered. Rule 7 of that court provides that an answer shall contain an admission or denial of each fact averred in the statement of claim, and that all facts not denied by defendant, or of which he does not aver himself to be ignorant, shall be deemed to be admitted. This rule does not require defendant to state the facts constituting his defense, but merely to either admit or deny those averred in the statement of claim. We have no knowledge of the contents of the statements of claim referred to, as they are not printed in either paper book, and nowhere in 101 A-7

The formal pleadings in a case are drawn by attorneys in technical language, and contain only such averments of facts as in the opinion of the attorneys are material to make out a prima facie case. They, therefore, do not purport to be a complete history or recital of all the facts of the transaction, and no unfavorable inference should be drawn from the failure to include details which are the natural and usual parts of the proof, rather than of the pleadings in the case. For these reasons it was error to permit the use of the answers, filed in the municipal court cases, in attacking the credibility of the wit

ness.

[3] Plaintiff claims the evidence was objected to solely on the ground that it should have been introduced as a part of plaintiff's case; that this objection conceded its relevancy, and, under the familiar rule that a party complaining on appeal of the admission of evidence, in the court below, will be confined to the specific objection there made. Morgan v. Gamble, 230 Pa. 165, 79 Atl. 410; Roebling's Sons Co. v. American Amusement & Construction Co., 231 Pa. 261, 80 Atl. 647. An examination of the record fails to convince us that this rule should be applied in the present case. When the papers were handed to the witness Julier, defendant's counsel made the following objection: “I object to any evidence in regard to these papers, unless it is introduced as part of plaintiff's case." The trial judge then said: "It goes to the credibility of the witness, I tiff's counsel replied: "That is the purpose understand. Is that the purpose?" Plainentirely." The court thereupon overruled the objection, but no exception was taken to the ruling at this point. After a preliminary examination of the witness the record shows the following:

"Q. In those affidavits you didn't say a word, did you, as to Carey [the driver] being drunk or as to having a smell of intoxicating liquor on him? (Objected to by counsel for defendant. Objection overruled; exception to defendant.)

A. No."

While the objection first made relates to the order of the admission of the evidence, the comment of the court and counsel for plaintiff clearly indicate the evidence was offered for the sole purpose of testing the credibility of the witness, and the general objection following that, upon which the exception was