Konagiskie v. Kolesa.

have intended what its words signify, and that the modifications thus made are mere corrections of careless language and really give the true intention." Rule discharged, at the cost of the plaintiff.

From M. M. Burke, Shenandoah, Pa.

Commonwealth v. Groff.

Collision between automobiles-Knowledge of collision-Act of June 30, 1919, sect. 23, P. L. 678.

On a trial of an indictment for failure to stop after colliding with another automobile, a new trial should be granted where the jury was not instructed that they could not convict the defendant unless he knew that he had collided with the car of the prosecutor.

Rule for new trial. Q. S. Lancaster Co., Sept. Sess., 1924, No. 10.

Charles W. Eaby, for rule; Joseph B. Wissler and S. V. Hosterman, contra. HASSLER, J.-The defendant was tried and convicted on an indictment which charged that he, while operating a motor-vehicle on a public highway, injured a motor-vehicle belonging to Alvin P. Young and failed to stop and render any necessary assistance. The testimony shows that at 5 o'clock on the evening of March 27, 1924, on a public highway, the defendant, with several others, passed an automobile belonging to Alvin P. Young, and that, when nearly past him, the middle or rear of his automobile truck struck the front wheel of Mr. Young's car, causing it to run into a pole, which slightly injured it. There was no proof that the defendant knew that he had collided with Mr. Young's automobile. The curtains of both the automobiles were down. The defendant and the three men who were in his automobile testified they had no knowledge of having collided with the car of Mr. Young, and that there were no marks upon the defendant's car indicating that any such collision had occurred. We are now asked to grant a new trial for the single reason that we erred in failing to instruct the jury that they could not convict the defendant unless he knew that he had collided with the car of Mr. Young.

The Act of Assembly of June 30, 1919, § 23, P. L. 678, requires the operator of a motor-vehicle who shall have injured the person or property of another to stop and render such assistance as is necessary and give his name and address. In commenting on this act of assembly in Com. v. Zeitler, 79 Pa. Superior Ct. 81, Judge Porter says: "The operator of a motor-vehicle, who knows that he has injured the person or property of another user of the highway, must perform the whole duty imposed by the statute. If he fails to promptly stop, he is guilty of an offence. But if, knowing that he has injured persons or property, he merely drives on, making no attempt to render assistance or give his name and address, the whole transaction involves only one offence." It could not be expected that such a person should stop for the purpose required by the act of assembly unless he knew that he had injured the person or property of another.

In this case there was no proof that the defendant knew he had collided with Mr. Young's automobile. He and three other witnesses testified that he did not know it. It was error, therefore, for us to have instructed the jury that they could convict if they believed the testimony on the part of the Commonwealth, as it had failed to prove this necessary fact. We, therefore, make absolute the rule for a new trial.

Rule made absolute.

From George Ross Eshleman, Lancaster, Pa.

Suspension of Automobile License.

Automobiles-Suspension of license—Intoxication—Act of June 14, 1923. 1. Under the Act of June 14, 1923, P. L. 718, a license to operate an automobile may not be suspended after the arrest of the operator on the charge of driving while under the influence of intoxicating liquor, pending final disposition of the case. 2. It is only after conviction of the offence that the Department of Highways may suspend or revoke the license.

Department of Justice. Opinion to Mr. Benjamin G. Eynon, Registrar of Motor Vehicles, Department of Highways.

CAMPBELL, 1st Dep. Att'y-Gen., Aug. 31, 1925.—In your recent letter you state that one, whom we shall designate as "A," was arrested on a charge of operating a motor-vehicle while under the influence of intoxicating liquor; that he has been held for court to answer said charge, but has not yet been tried nor has his case been otherwise disposed of; that upon receipt of said information, accompanied by a doctor's certificate attesting the truth of such charge, and after investigation, his license to operate a motor-vehicle has been suspended by your department pending the disposition of his case and until such suspension is lifted by your department; and that protest has been filed, contesting your authority so to do until and unless "A" has been convicted of the charge.

You ask to be advised as to your authority to suspend an operator's license under these facts.

The authority of the Secretary of Highways to suspend or revoke a motorvehicle operator's license is based upon sections 13 and 23 of the Act of June 30, 1919, P. L. 678, as last amended by the Act of June 14, 1923, P. L. 718. (The Prohibition Enforcement Act of March 27, 1923, P. L. 34, provides for the revocation of a motor-vehicle operator's license upon conviction of violation of certain provisions of that act, which provisions are not applicable to the matter of your inquiry and so are not considered.)

Section 13 authorizes the Secretary, after hearing upon notice given, (1) to suspend the license of (a) a reckless or careless operator endangering the safety of the public; (b) an habitual violator of the provisions of that act; (2) to suspend or revoke the license of any operator convicted of a misdemeanor or a felony in connection with the use of a motor-vehicle.

It also authorizes him, upon investigation, to suspend the license of any such operator who has been involved in an accident resulting in injury to person or property, upon the sworn statement of two reputable persons that such accident was the result of recklessness or carelessness on the part of such licensee, and directs the annulment of such license after hearing, if the evidence justifies such action.

Section 23 prohibits (a) the tampering with, making use of or operating a motor-vehicle without the knowledge or consent of the owner or custodian thereof; (b) the operation of a motor-vehicle while under the influence of intoxicating liquor or any narcotic or habit-producing drug or the permitting of any such person to operate such vehicle; (c) taking part in any race or speed contest for a price or wager upon a public highway, or attempting to establish or lower any speed record upon a public highway; (d) turning off the lights of a motor-vehicle for the purpose of avoiding identification or arrest. Said section requires any operator of a motor-vehicle who shall have injured the person or property of any other user of the highway to stop and render such assistance as may be necessary and to give, upon request, his name and address to the injured party or his proper representative.

VOL. 7-20

Suspension of Automobile License.

This section, after providing that violation of any of its provisions shall constitute a misdemeanor, and after providing penalties upon conviction thereof, contains the following clause: "... and the clerk of the court in which such conviction is had shall certify forthwith such conviction to the commissioner, who shall suspend or revoke the license issued to such person, and no other license shall be issued to such person for a period of one (1) year following such suspension or revocation."

The authority given in these sections to revoke the operator's license for violation of any of the provisions of said section 23, including that of operating a motor-vehicle while under the influence of intoxicating liquor, is based upon a conviction of the offence charged, and there is no authority given to either suspend or revoke a license for such cause until and unless the operator is convicted, nor is there any authority to suspend such license after arrest, pending final disposition of the case.

You are, therefore, advised that the suspension of the operator's license of "A" was without authority, and the same should be immediately reinstated.

If "A" is convicted of the offence charged, it will then be the duty of the Secretary to revoke his license, upon receipt of the certificate of the clerk of the courts evidencing such conviction.

From C. P. Addams, Harrisburg, Pa.

Weiermuller v. American Ice Company.

Negligence-Driver of ice-wagon intimidating small boy stealing ride on rear platform into jumping off.

1. It is wantonness or recklessness on the part of the driver of a moving vehicle, traveling in traffic on a public highway, to use a whip and imperious language to frighten a seven-year-old boy into jumping or falling off the vehicle.

2. Where the plaintiff, a boy of seven, testified that he was stealing a ride on the rear platform of a horse-drawn ice-wagon owned by the defendant, and that its driver shouted to him to "get the hell off" and he heard a crack against the side of the wagon like a hammer and jumped or fell off and was run over by a following truck, receiving the injuries for which suit was brought, and he was corroborated by another small boy who testified that he saw the driver swing a whip and heard him curse and halloo at the boys, a verdict for plaintiff was sustained on the ground that the driver was bound to know that he would put the boys in jeopardy by forcing them off a moving wagon in the midst of traffic.

Motion for judgment n. o. v. C. P. No. 2, Phila. Co., Dec. T., 1923, No. 488. Robert E. Bernstein, for plaintiff; Frank R. Savidge, for defendant.

LEWIS, J., Jan. 22, 1926.—If defendant's motion was for a new trial of this case, we should feel very much inclined to require that a second jury should pass upon the interesting and close questions involved. The evidence offered on behalf of plaintiff was weak when contrasted with that of defendant, particularly as to the ownership of the ice-wagon from which the plaintiff boy fell. A new trial is not asked for, but defendant's counsel has forcefully and earnestly urged his contention that judgment should be entered for the defendant, notwithstanding the verdict.

His first point is that there is no sufficient proof of negligence on the part of defendant to support the verdict. With this we cannot agree. The gist of the allegation of negligence in the plaintiff's statement of claim was that, while the minor plaintiff, then about seven years of age, was stealing a ride on the rear platform of a horse-drawn ice-wagon owned by defendant, defendant's driver, by the use of a whip, put the boy in fear and thereby frightened

Weiermuller v. American Ice Company.

or intimidated him into falling or jumping off the moving wagon, with the result that the boy fell in front of an approaching truck and was injured. On the testimony of the boy plaintiff alone, no recovery would be permitted. He neither saw the driver nor the whip, and under the pleadings the use of a whip must have been shown. The boy heard two sounds-a voice ordering him to "get the hell off," and a noise like the crack of a hammer on the side of the wagon. This latter noise may have been caused accidentally or intentionally by any number of things and not at all by the driver. But a second boy witness furnished evidence from which the jury could justly find that the crack or noise came from the swinging of a whip by the driver, and also corroborated the plaintiff boy in his testimony that the driver cursed or hallooed at the one or both of the boys riding on the wagon-step.

The trial judge can say from experience that the natural state of mind of a boy stealing a ride on the back step of an ice-wagon is that of fear-fear of being chased off. The thrill or excitement that a boy experiences in the doing of something that is forbidden is the attraction to the act. This, however, must be known to adults, including the drivers of such vehicles as ice-wagons, which have always been particularly inviting to small boys, and these drivers must govern their actions by the light of this general knowledge of a child's reactions. Of course, the mere fact that the boy was in fear, and through fear, or haste due to fear, fell to the street, would create no cause of action against this defendant. However, the testimony of the two boys, taken together, was sufficient, notwithstanding the youth of these witnesses, to support a conclusion by the jury that the driver made use of a whip to force or frighten both boys off the moving wagon at a time when it was traveling on a public highway where other traffic in the rear of the wagon was to be anticipated. The driver was bound to know that he would put the boys in jeopardy by forcing them off the moving wagon in the midst of traffic. While the plaintiff boy himself did not see the whip, yet his companion said that he saw it, and we are not persuaded that it was essential to the plaintiff's case that it should be proved that the plaintiff boy's fear was engendered by a whip visible to his eye. If he surmised that the noise on the side of the wagon was the noise of the crack of a whip, then, according to his companion, his surmise was correct. It is possible that he may have felt the same degree of fear as the result of a noise not made by a whip or anything motivated by the driver, but where positive evidence is available that one state of facts existed, we are not free in disposing of such a motion as this to conjecture that the result may have flowed from another cause, and that the alleged cause did not exist.

The testimony of the two boys as to the swinging of a whip, considered, as it should be, in connection with their testimony as to the driver's commands to or hallooing at them, certainly is sufficient, if believed, to furnish support for the conclusion that the driver made use of a whip in order to force or impel the boys to leave the ice-wagon, and all the witnesses agreed that the wagon was moving at the time plaintiff boy fell or jumped off, and that just in the rear of this moving wagon was the automobile truck which ran over the child.

The identification of the vehicle as an "American Ice" wagon depended almost entirely upon testimony given by the two little boys, and it is quite possible that their statements may have been the result of association of ideas, such as greater familiarity with the wagons of the defendant company because of the larger number of such wagons traveling the public streets. On the other hand, some basis for accurate judgment from observation was

Weiermuller v. American Ice Company.

disclosed by the boys, despite their youth, and their testimony was sufficient in quantity and value, if believed, to fairly satisfy the minds of the jury on this point, so essential to the plaintiff's right of recovery against this defendant. In other words, we cannot say as a matter of law that the evidence of identification of the wagon with the defendant was not sufficient to meet the burden of proof that, of course, rested upon the plaintiff.

We have not discussed the element of wantonness in the conduct of the driver. It is wantonness or recklessness on the part of a driver of a moving vehicle, traveling in traffic on a public highway, to use a whip and imperious language to frighten a seven-year-old boy into jumping or falling off such moving vehicle.

Judgment n. o. v. is refused.

Hagan v. Universal Service Motors Co., a Corporation.

Parol evidence to vary writing-Collateral or subsidiary agreements.

1. Whether an oral agreement falls within the field embraced by a written agreement is to be determined by comparing the two and deciding whether parties situated as were the parties to the contract would naturally include the one in the other; if they relate to the same subject-matter and are so interrelated that both would be executed at the same time and in the same contract, the scope of the subsidiary agreement must be taken to be covered by the writing. These questions must be determined by the court.

2. Where one about to lease property for the purpose of a "gymnasium and physical culture" institute, notified the president of the defendant corporation that he would not sign the lease, which required him to make extensive improvements in the building, unless the corporation would agree to furnish him with heat, hotwater and steam at reasonable cost and keep the premises free from noxious odors, gas and poisonous fumes, and the president orally agreed that the corporation should do these things, and the plaintiff thereupon executed the lease and, after entering upon the property, found that the oral agreement was being violated to such an extent that, notwithstanding the improvements he had put in, he had to abandon the property, as the written lease was a contract complete in itself, the collateral or subsidiary contract is incapable of proof, and, hence, will not sustain an action.

Affidavit of defence raising questions of law. C. P. No. 5, Phila. Co., Sept. T., 1924, No. 4538.

B. Harris, for plaintiff; M. J. Speiser, for defendant.

MARTIN, P. J., Feb. 8, 1926.-Suit was instituted by plaintiff to recover damages for the breach of a collateral oral agreement made in connection with the lease of part of a building by defendant to plaintiff.

In the statement of claim it is alleged that before the lease was signed plaintiff held a conversation with the president of the defendant company in relation to renting from the defendant the fourth floor of the property, 1825 to 1833 Market Street, in the City of Philadelphia. It is alleged that this portion of the building was in an untenantable condition, without heat, water, light or sewer connection, the floors rotten and in a dangerous condition; that plaintiff stated to the president that he would not rent the premises unless defendant undertook to furnish him with a plentiful supply of heat, hot water and steam at a reasonable cost, and to keep the premises free from noxious odors, gases and poisonous fumes, and on no other condition would plaintiff agree to sign a lease and expend money on alterations, repairs and equipment requisite to put the premises in a condition to enable him to carry on his