Clairton Alderman's Election.

question of law as to how many justices of the peace the respective boroughs were entitled to, and the department contended, and the court afterwards found, that no vacancies existed and, therefore, no commission could be issued. On the other hand, this department ruled in Mutchler's Case, 45 Pa. C. C. Reps. 274, 25 Dist. R. 831, that such commissions should issue where the records of the Secretary of the Commonwealth show a vacancy to be filled and the election and acceptance of the applicant for the commission. In an opinion of this department, dated Dec. 15, 1917, reported in the Opinions of the AttorneyGeneral for 1917-1918, the following facts appeared: Meyer "was elected an alderman for the City of Coatesville, without reference to any wards,” and at the same election the city was divided into five wards. Held, that a commission should issue to Meyer for the ward in which he resided and that vacancies existed in all of the other wards in Coatesville, which, under the provision of section 3 of the Act of March 22, 1877, P. L. 12, were to be filled by appointment of persons residing in such other wards.

You are, therefore, advised that a commission should issue to B. B. Samuels as alderman for the 2nd Ward of the City of Clairton, and that after Jan. 1, 1926, a vacancy will exist in the office of alderman for the 1st Ward of the City of Clairton, which may be filled by the appointment by the Governor of one who resides in the said ward and who has resided therein for one year next preceding such appointment.

From C. P. Addams, Harrisburg, Pa.

Root v. Hershey et al., Receivers of the Lancaster County Farmers Supply Company.

Affidavit of defence

- Acts of

Replevin-Identical goods Statement April 19, 1901, May 14, 1915, and May 19, 1915.

1. A plaintiff in replevin is entitled to recover only the identical goods to which he is entitled to possession, and where he has purchased by a present sale a thousand bushels of oats from the defendant, he cannot recover by replevin an equal amount of the same kind and quality from the defendant without alleging that it is the same identical oats that he purchased, though the defendant might be liable for damages for failure to replace the oats purchased.

2. Unless a plaintiff's statement shows a good cause of action, he is not entitled to judgment for want of a sufficient affidavit of defence.

3. The Practice Act of May 14, 1915, P. L. 483, does not apply to actions of replevin which are under the Act of April 19, 1901, P. L. 89, and judgment cannot be entered for the defendant on an affidavit raising a question of law in a replevin suit.

4. The Sales Act of May 19, 1915, § 6, P. L. 543, considered.

Replevin. Affidavit of defence raising a question of law, and rule for judgment for want of a sufficient affidavit of defence. C. P. Lancaster Co., March T., 1925, No. 51.

Guy K. Bard, for plaintiff.

M. E. Musser and H. Frank Eshleman, for defendants.

HASSLER, J., June 27, 1925.-The plaintiff issued this writ of replevin to obtain possession of 658 bushels of oats. In his statement he alleges that on or about Oct. 13, 1924, he purchased 1000 bushels of oats from the Lancaster County Farmers Supply Company, for which he paid and which he left in possession of the said company, it having been orally agreed between them that they were to remain in the company's bins, mixed with other oats of the

Root v. Hershey et al., Receivers of Lancaster County Farmers Supply Company.

same kind and quality belonging to it. It was agreed that they were either to be chopped into feed for the plaintiff by the company or removed by him. The plaintiff did obtain 342 bushels of the oats so purchased, leaving 658 bushels in possession of the company. He also alleges that on Jan. 24, 1925, more than three months after he bought and paid for the oats, the defendant receivers for said company were appointed and took possession of all of its property. He alleges, also, that at the time of the appointment of said receivers there was in the said company's possession 658 bushels of oats of the kind and quality which he had purchased under the aforesaid oral agreement. He does not allege that the identical oats purchased by him were among those then in its possession. An affidavit of defence was filed. The plaintiff, contending that it is not sufficient to prevent judgment, obtained this rule for judgment for want of a sufficient affidavit of defence.

We do not think that there is anything in the affidavit of defence sufficient to prevent judgment, if under the statement the plaintiff is entitled to judgment. It is well settled that unless plaintiff's statement shows a good cause of action, he is not entitled to judgment for want of a sufficient affidavit of defence: Holland v. Sunbury Iron Works, 9 Pa. Superior Ct. 261; Bordentown Banking Co. v. Restein, 214 Pa. 30; Cherry v. Trust Co., 282 Pa. 52. The Sales Act of May 19, 1915, § 6, P. L. 543, provides:

"1. There may be a contract to sell or a sale of an undivided share of goods. If the parties intend to effect a present sale, the buyer, by force of the agreement, becomes an owner in common with the owner or owners of the remaining shares.

"2. In the case of fungible goods, there may be a sale of an undivided share of a specific mass, though the seller purports to sell, and the buyer to buy, a definite number, weight or measure of the goods in the mass, and though the number, weight or measure of the goods in the mass is undetermined. By such a sale the buyer becomes owner in common of such a share of the mass as the number, weight or measure bought bears to the number, weight or measure of the mass. If the mass contains less than the number, weight or measure bought, the buyer becomes the owner of the whole mass and the seller is bound to make good the deficiency from similar goods, unless a contrary intent appears."

In the present case, according to the allegations in the statement, the parties intended to effect a present sale to the plaintiff of 1000 bushels of oats, and even though they were not separated from the mass, but mixed with other oats, the plaintiff became the owner of them and was entitled to their possession. If the Lancaster County Farmers Supply Company did not have the oats which the plaintiff bought in its bins when he wanted possession of them, it was bound to make up the deficiency from similar goods, according to the contract. This only imposed the duty upon the company to replace oats belonging to the plaintiff which it had used. Failure to do this made it liable to the plaintiff in damages for breach of contract, but did not give him title to other oats which he had not purchased.

Replevin is a remedy to place one in possession of goods or chattels of which he has the title and to which he has a right of possession. Under this writ, therefore, the plaintiff was entitled to possession of the oats which he purchased, but not of any other oats. In his statement he does not allege that the defendants have the 1000 bushels of oats which he purchased, or any part thereof. He alleges that they have in their possession oats of the kind and quality which he purchased from the company. He is not entitled to possession of such oats or any oats unless he avers that they are the identical oats

Root v. Hershey et al., Receivers of Lancaster County Farmers Supply Company. which he purchased from the company, or that his oats are part of those in the defendants' possession. Having failed to do this, he is not entitled to judgment for want of a sufficient affidavit of defence.

The defendants in their affidavit of defence ask us to enter judgment in their favor. This we cannot do. The proceeding is under the Act of April 19, 1901, P. L. 88, which relates only to actions of replevin, and is not under the Practice Act. The Practice Act of May 14, 1915, P. L. 483, does not apply to actions of replevin, but only to actions of contract and trespass. So that a provision allowing judgment to be entered for the defendants on an affidavit raising a question of law has no application in this case.

The rule for judgment for want of a sufficient affidavit of defence is discharged.

From George Ross Eshleman, Lancaster, Pa.

Britt v. Sadusky et al.

Workmen's compensation—Injury-Chill—Pneumonia.

1. Under the Workmen's Compensation Act of June 2, 1915, P. L. 736, in order to hold the employer liable, it is unnecessary to show that the injury arose out of the employment; it is sufficient if it occurred in the course of employment, except for injuries intentially inflicted or caused by an act of a third person, intended to injure the workman for reasons personal to him.

2. The term "violence," defined by the Workmen's Compensation Act, pertains solely to the effect on the body and not as to the manner in which that effect was produced.

3. A claim will be sustained where it appears that pneumonia resulted from a chill received by the claimant while lying on his back on a cold pavement under an automobile of his employer which he was repairing.

Appeal from decision of the Workmen's Compensation Board. C. P. Northumberland Co., Sept. T., 1925, No. 329.

Roger J. Devers, for plaintiff; Samuel Y. Spyker, for defendants.

STROUSS, P. J., Nov. 9, 1925.-This case is before us on an appeal from the decision of the Workmen's Compensation Board reversing the award of the referee. The board bases its action on its legal conclusion that the injury complained of is not compensable under our statutes. The referee, upon sufficient evidence, found as a fact that Michael Britt, employed by Andrew J. Sadusky, in making repairs to a certain automobile of his employer, in the course of his employment became chilled and frozen to such an extent that he had to be assisted to his home, where he was placed in bed. Pneumonia developed the following day as a result of the chilling and freezing received by the claimant the preceding day; that his present pulmonary tubercular condition followed as a consequence of the pneumonia, of which the chilling and freezing was the proximate cause. The testimony as to these facts being uncontradicted and sufficient to support the findings of the referee, we are confronted with the sole question as to whether or not the chilling and freezing sustained by the claimant in the course of his employment is such an injury as is contemplated by the Workmen's Compensation Act.

Under the Workmen's Compensation Law of 1915, in order to hold the employer liable, it is unnecessary to show that the injury arose out of the employment. It is sufficient if it occurred in the course of employment, except for injuries intentionally self-inflicted or caused by an act of a third person intended to injure the workman for reasons personal to him: Dizikowska v.

Britt v. Sadusky et al.

Superior Steel Co., 259 Pa. 578. The testimony clearly establishing the fact that the pneumonia resulted from chills received by the claimant while engaged in the course of his employment, the employer is liable unless the chills and freezing set up by the claimant as the basis of his claim are not injuries within the definition of the act.

The act of assembly defines compensable injury in the 301st section as follows: "The terms 'injury' and 'personal injury,' as used in this act, shall be construed to mean only violence to the physical structure of the body, and such disease or infection as naturally result therefrom." The same section further provides, after referring to the exclusion of injuries caused by the act of a third person intended to injure the employee because of reasons personal to him and not directed against him as an employee or because of his employment, as follows: "But shall include all other injuries sustained while the employee is actually engaged in the furtherance of the business or affairs of the employer, whether upon the employer's premises or elsewhere, and shall include all injuries caused by the condition of the premises, or by the operation of the employer's business or affairs thereon, etc."

The injury which is compensable is violence to the physical structure of the body, and the definition does not mean merely an injury to the physical structure of the body by violence. The term violence, as used in the definition, pertains solely to the effect on the body and not as to the manner in which that effect was produced. This definition, when applied to the facts as found by the referee, brings the claimant within the provisions of the act. Had the employee inhaled, while beneath this automobile that he was engaged in repairing, poisonous fumes from the exhaust of the car, resulting in his present condition, no one would seriously contend that the injury was not within the provisions of the act. In this latter instance there would be no violence to the physical structure by reason of contact with a solid substance or by violence. It would have been the action of the fumes on the physical structure of the body. So, in the instant case, by reason of the insufficient heating of the garage in which the claimant worked, cold was conducted into the body of the claimant as he lay beneath the machine, so stiffening, freezing and chilling the physical structure of his body that his kidneys were congested, resulting in pneumonia and his present condition.

The chilling and freezing in the instant case was an exposure to which all were not alike exposed because of the temperature upon that day, or, indeed, within this very garage, for another workman who was not working upon the floor of that garage, but who was moving about the garage, handing tools to the claimant, who was beneath the car upon the cement, suffered no ill effects from his exposure. The claimant was required, in order to repair the car in question, to lie upon his back upon the cement beneath the car.

In our opinion, the claimant is clearly within the provisions of the act. To hold otherwise would be to set aside the will of the legislature with respect to this class of injury. Had the legislature intended that this class of injury received in the course of employment should be excluded from the benefits of the act, it could have easily done so by providing that the term "injury" should be construed to mean violence to the physical structure of the body by violent

means.

And now, to wit, Nov. 9, 1925, the action of the Workmen's Compensation Board is reversed and award of compensation made by the referee is reinstated, and, agreeable to section 427 of the said Act of 1919, the record is hereby remitted to the board for further hearing and determination.

From C. M. Clement, Sunbury, Pa.

Security Finance Company v. Murray.

Attachment-Fraudulent debtor's attachment-Standing of garnisheeBond-Acts of March 17, 1869, P. L. 8, and May 24, 1887, P. L. 197—Practice, C. P.

In attachment under the Fraudulent Debtors' Act, the bond required must be approved by the court before the issuance of the attachment, but the garnishee has no standing to move to quash for failure to have bond approved.

Rule to show cause why attachment should not be quashed. C. P. Cumberland Co., Dec. T., 1924, No. 240.

McCrea & McKeehan, for petitioner, garnishee.

J. M. Rhey, for respondent.

BIDDLE, P. J., July 31, 1925.-This was an action of assumpsit commenced by an attachment under the Fraudulent Debtors' Act of March 17, 1869, P. L. 8, as amended in 1887, brought by the Security Finance Company against Lindley R. Murray. A bond in double the amount of the claim was filed with the prothonotary prior to the issuance of the attachment, but the bond was not approved by the prothonotary, nor was it ever presented to the court for approval, and the attachment issued without such approval having been secured. Goods in the possession of Raymond L. Shenk were levied upon, and he was summoned as garnishee. The attachment issued Nov. 18, 1924. On March 3, 1925, Raymond L. Shenk, the garnishee, presented a petition, asking that the attachment be quashed because of the plaintiff's failure to secure the approval of the bond by the judge of this court prior to the issuance of the attachment. A rule to show cause was granted on March 3, 1925, and the plaintiff filed an answer, alleging that the garnishee had no standing to make the motion to quash, and also asking the court to approve the bond nunc pro tunc.

In a proceeding of this nature, we think that the directions of the act must be strictly complied with, and that the approval of the bond by the court, or a judge thereof, prior to the issuance of the attachment, is essential to the validity of the attachment, and that the court should not approve the bond thereafter nor permit the filing of a new bond: Wallace Elliott & Co. v. Plukart, 6 Pa. C. C. Reps. 151; McMasters v. Majewski, 5 D. & C. 279.

If the present rule had been granted at the instance of the defendant, we would have no hesitation in making it absolute. It was urged, however, with much force by the learned counsel for the plaintiff that the garnishee had no standing to ask that the writ in this case be quashed, and it was suggested that no authority for such a proceeding could be shown. In the case of Yost v. Ginley, 2 Schuyl. Legal Rep. 347, this position was sustained, although the opinion in that case contained no argument whatever in support of the position there taken; and the reason given, that the sole remedy of the garnishee was to proceed by an interpleader action, is one with which we cannot agree. In the case of National Bank of the Republic v. Tasker, 1 Pa. C. C. Reps. 173, a similar attachment was quashed on the application of one claiming to be the owner of the goods attached; and this case would seem to be authority for the action of the garnishee here. In the case of Lumber Co. v. Moyer, 35 Pa. Superior Ct. 503, the appellate court held that the lower court had not exceeded its power in permitting a claimant of the goods attached from intervening in his behalf; but the court there held that, while such intervention was proper, the intervenor might proceed only as far as was necessary for his own protection, and might not ask to have the case stricken down alto