"Margaret E. Houser has a life estate or during widowhood in the real estate described in the case stated and that she is entitled to have the use and possession of the same and further that upon the termination of her estate therein O. E. Houser takes the same in fee, upon payment for distribution among the heirs of George Houser, the valuation of $3,000 placed thereon by the said George Houser, by the terms of the codicil to his last will and testament." to be paid for it by the appellant and to be used by the widow for her maintenance if she so desires. The intention of the testator that she shall have his entire estate for her will, is not disturbed by the codicil. Only the use and maintenance, as expressed in the mode of carrying it out is changed. The appellant takes the farm charged with the lien of the valuation placed upon it by the testator. Weiler's Estate, 169 Pa. 66, 32 Atl. 101. As the case stated does not disclose how long he has been in possession of it, no order can now be made as to interest upon the valuation money. It may be that the appellee has been in receipt of the income from the farm. [1] But for the codicil the right of the appellee, not only to the possession of the farm left by her husband, but to his entire estate, could not be questioned. He gives her all of his property, real and personal, to be used as she sees fit, for her maintenance as long as she remains his unmarried widow, and then adds that, upon her death or remarriage, the "balance" of his property-what she may not have consumed-shall be divided among his legal heirs. By the "balance" of his property the testator must have meant | ried widow of George Houser, deceased. what might be left of it after his widow had consumed so much of it as she deemed necessary for her maintenance. A power to consume, though not formally expressed, must be implied when necessary to carry out a testator's intention, as in the present case where he speaks of the "balance" of his estate left after the use of it by his widow, the appellee, so long as she remains his widow. With the power given her to consume his entire estate, the real and personal property being classed together, she took an absolute estate. Kennedy v. Pittsburgh & Lake Erie Railroad Co., 216 Pa. 575, 65 Atl. 1102; Hege v. Ickes, 267 Pa. 57, 110 Atl. 238. If this power should be exercised by her, the farm might be heavily incumbered or disposed of by the appellee, and never pass to the appellant, as the testator clearly intended by his codicil. The judgment of the court below is reversed, and the record is remitted, with direction that judgment be entered in favor of the defendant, upon his paying the sum of $3,000 to the appellee for her use and maintenance so long as she remains the unmar [2, 3] The purpose of a codicil is to change the disposition or administration of a testator's estate, as directed in the will, Line's Estate, 221 Pa. 374, 70 Atl. 791, 19 L. R. A. (N. S.) 293; and when the disposition of the whole or part of an estate is intended by the codicil to be different from that provided for in the will, the later expression of the testator's intention must prevail. This is the situation here presented. After giving by his will his entire estate to his widow for a definite period, with power of consumption, the testator directs by his codicil that a portion of it so given to her-the farm on which he resided-should go to the appellant at a fixed valuation. As just shown, this farm might never pass to him under the power given the appellee. The undoubted intention of the testator was that it should pass to him, and he therefore, while adhering to his intention as expressed in his will, substi tuted for the farm itself the sum of $3,000, MUNCEY v. PULLMAN TAXI SERVICE CO. (Supreme Court of Pennsylvania. Dec. 31, 1920.) 1. Evidence 158(28)-Books should be produced to show profits. To show the profits of a business, the books of account should be produced, or their nonproduction accounted for. 2. Evidence 187 Sufficiency of proof of search for lost books generally for trial judge. Sufficiency of proof of search for a lost instruction, so as to allow secondary evidence, is generally left to the trial judge's discretion. 3. Appeal and error 1050 (4) Secondary evidence without sufficient proof of search harmful. is If proof of search for lost books of account manifestly insufficient, admission of secondary evidence as to what they best show is cause for reversal. 4. Evidence 183 (8) Proof of search for lost books manifestly insufficient. Proof of search of lost books of account, on which secondary evidence of what they would show was admitted, held manifestly insufficient. 5. Damages 173(1)—Profits of business ordinarily not evidence to prove damages in personal injury. The general rule, to which there are exceptions, is that profits from a business are not evidence to prove damages in a personal injury case. Appeal from Court of Common Pleas, Allegheny County; James B. Drew, Judge. (112 A.) Action by Frank W. Muncey against the now before us. Mr. Justice Kephart, in Pullman Taxi Service Company. Judgment Baxter v. Phila. & R. Ry. Co., 264 Pa. 467, for plaintiff, and defendant appeals. Revers- 472, 476, 107 Atl. 881, 883, makes a most ed, with venire facias de novo. thorough analysis of our decisions upon the point in hand. We there said: Argued before BROWN, C. J., and MOSCHZISKER, FRAZER, WALLING, SIMPSON, and KEPHART, JJ. "Where it is impossible * to distinguish between the personal earnings of the individual and the return from capital invested W. S. Dalzell and Dalzell, Fisher & Dal- and the labor of others, the net income or net zell, all of Pittsburgh, for appellant. Rody P. Marshall and Meredith R. Marshall, both of Pittsburgh, for appellee. MOSCHZISKER, J. The stenographer's notes in this case open thus: "Defendant admits it owned, and was operating through one of its employees, a taxicab on the night of April 7, 1915, at a time when plaintiff was a passenger therein; that plaintiff was a passenger for hire; that he received certain personal injuries through the negligence of defendant's employee. There is "involved * simply a question of the results from such business cannot be considered in determining the amount of damages to which the claimant is entitled. But where the predominating factor is the directing intellectual and physical labor of the individual, such business may be characterized as personal to that individual, though others * * * aid in the work. * * The worth of earning power, as applied to a business, must not be made up from profits, which represent earnings from invested capital, or from the labor of others, or both. * * Each case must depend on the nature and extent of the business, the amount of personal direction and labor of the party [meaning the plaintiff] engaged in connection therewith, as well as the capital invested and labor employed. * * The evidence [should give] a detailed description of the character of the business, and of the services performed by the [plaintiff] and his employees" respectively; so that, "considering the capital invested and Appellant contends that-for the several labor employed, the character of the services reasons which we shall immediately discuss performed by [plaintiff], and the earnings realthe evidence relied on to show damages was insufficient in law, and that certain references thereto in the charge of the trial judge were unduly prejudicial to defendant. There is merit in both of these contentions. amount of damages." The issue as to the damages was submitted to the jury and a verdict for a substantial sum found against defendant, on which judgment was entered; hence this appeal. Plaintiff, Frank W. Muncey, conducted a detective agency in the city of Pittsburgh from 1906 to September following the accident, when his establishment was sold out at a constable's sale on a distress for rent, most of which rent, however, apparently accumulated during a period prior to his injuries. Muncey testified that he employed "operators" to assist him in the business-sometimes 100, sometimes 1, sometimes 20"; that he "averaged $10,000 a year profit out of the business"; that he kept books of account, showing receipts and expenses; and that these books had been lost after the present suit was commenced. Neither plaintiff nor his bookkeeper, or clerk, who appeared as a witness, undertook to say that the books which they alleged had been lost showed a profit of $10,000 a year. He simply asserted the fact that such a profit was made, and she gave no information on the point. In the language of the trial judge, at one point in his charge, when speaking of this evidence: "He [plaintiff] said so [that he made $10,000 profit out of the business each year], and that is about all the evidence there is on that point." This court in two recent opinions very fully discussed the law on the subject of ized therefrom, with all the other evidence in the case," it may be intelligently determined criterion by which to judge the value of plainwhether the average profits claimed are a safe tiff's "services to his business." Again, in Dempsey v. City of Scranton, 264 Pa. 495, 503, 107 Atl. 877, 880, Mr. Justice Frazer, discusses the same subject. We there state: "Inquiry into the character of the business is necessary, also [into] the capital and assistants employed." In the present case plaintiff's clerk, who kept his books, in answer to the question, "Did you know at the end of each month how much you had made that month?" replied "Yes; if I had gone into it, I could have found out to the cent." So far as the evidence shows, however, the witness did not take the trouble to go "into it," and hence could not furnish any enlightening detail. This witness further said: "We never figured on an average of what we made, because the business varied; some years it was very good, and then the next year it would not be." Plaintiff himself stated frankly that he could not even approximate his gross receipts or expenses in any given year. No effort was made to give any detailed description of the business, or to prove the actual receipts and expenses; nor did plaintiff attempt to explain the system under which the numerous employees referred to any way to show their relation to the profits | our decisions. To employ the language of alleged to have been earned by him; nor, in Justice Mestrezat, in Buckham v. P. &. R. fact, to depict in any manner the conduct of his business, as required by our casSee Baxter v. Railroad and Dempsey v. Scranton, supra, and authorities there cited. es. [1] In a case such as the one now before us, where it is admitted that books of account showing the receipts and expenses of a business were kept during a period of years prior to the time plaintiff claims his loss occurred, the entries in these accounts-having been made at a time when there was no anticipation of their use for the purpose of showing a profit to plaintiff from his business-would possess peculiar evidential value on a point which, unless plaintiff from memory or otherwise can furnish some detail information, it must be difficult to prove satisfactorily; therefore the books should either be produced at the trial or their nonproduction properly accounted for. [2, 3] The ordinary rule is that "the sufficiency of the proof of search for a lost instrument is generally left to the discretion of the trial judge" (Gorgas v. Hertz, 150 Pa. 538, 540, 24 Atl. 756); but it is equally well established that, if the proof be manifestly insufficient, the admission of secondary evidence as to what the missing document, here books, would best show, constitutes cause for reversal (Hemphill v. McClimans, 24 Pa. 367, 370. [4] In the present case the only evidence as to a search for the missing books of account is as follows: (1) A declaration that they had not been seen since the constable's sale in September, 1915; and (2) plaintiff's assertion that he had looked for them "at [his] home," by "searching [his] books and papers." Miss Wertz, plaintiff's clerk, simply stated that, although she was present until the office was "closed up," she did not know where the books were. So far as the evidence shows, this witness made no effort to search her effects; nor did plaintiff inquire of the constable, who officiated at the sale, or of the purchasers thereat, to ascertain the whereabouts of the books. Moreover, plaintiff did not state just what books I had been lost, or whether his bank and check books were among the missing ones; and, if they were not, he failed to explain their nonproduction. In short, the evidence as to the alleged search is manifestly insufficient. We do not mean to rule that it is always necessary to produce books of account, in order to prove damages in a case of this character; but on the peculiar facts at bar, if plaintiff's books can be found by proper search, defendant is entitled to have them in court. If the books cannot be produced, defendant is entitled to the detailed information required by Ry. Co., 227 Pa. 277, 280, 75 Atl. 1069, 1070, possibly the information was not furnished at the trial under review because the witnesses "had not given the matter sufficient consideration before [they] were called to testify." If so, this can no doubt be remedied before another trial occurs. [5] As noted in Dempsey v. Scranton, supra, 264 Pa. 499, 107 Atl. 877, the general rule is that profits from a business are not evidence to prove damages in a personal injury case; but there are exceptions to this rule. The difficulty here, however, is, as previously pointed out, that the evidence adduced at the trial is lacking in detail, and a court of review cannot tell therefrom whether the case falls within the general rule or may be classed as an exception thereto. While perhaps the charge of the court is open to the criticism made by appellant that the learned trial judge "iterated and reiterated" the fact that plaintiff claimed to have lost $10,000, as though the latter had really proved such a loss, and that he also stated to the jury certain of plaintiff's complaints, as though they were established facts, yet we might hesitate to reverse on these alleged errors alone if they were the only ones in the case; but, when the record is taken as a whole, we are convinced that, for the reasons already stated, a new trial must be granted. It is to be assumed that, when the case is next heard, the court will avoid the apparent slips in the charge to which we refer. The judgment is reversed, with a venire facias de novo. DAVIS et al. v. PORCH BROS., Inc. (Supreme Court of Pennsylvania. Dec. 31, 1920.) 1. Appeal and error 954(4)-Appeal from dissolution of temporary injunction based on reasonable grounds will be dismissed. Where there were reasonable grounds for the action of the trial court in dissolving preliminary injunction, plaintiff's appeal from its action will be dismissed. 2. Injunction 129 (2)—Dismissal of bill without request before answer filed irregular. Dismissal of the bill at the time of dissolv ing preliminary injunction before answer had been filed, when such dismissal was not even asked for by counsel for defendant, was wholly irregular. Appeal from Court of Common Pleas, Cambria County; Marlin B. Stephens, President Judge. (112 A.) Frank P. Barnhart, of Johnstown, for appellee. Suit by J. A. Davis and William Whitney, William A. McGuire, of Johnstown, for apcopartners trading and doing business under pellants. the trade-name of "The Franklin," against Porch Bros., Incorporated. From decree dissolving preliminary injunction, plaintiffs appeal. Decree reversed, and bill reinstated with a procedendo. Argued before BROWN, C. J., and STEWART, MOSCHZISKER, WALLING, SIMPSON, and KEPHART, JJ. em. PER CURIAM. The bill which the appellants filed in the court below prayed for the same relief they asked for in their petition to stay the writ of habere facias possessionThat bill has this day been reinstated. See (Davis v. Porch Bros. [October term, William A. McGuire, of Johnstown, for ap- 1920, No. 148] 112 Atl. 32); and the refusal pellants. of a rule to show cause why the writ of exeFrank P. Barnhart, of Johnstown, for ap- cution should not be stayed was not error.. pellee. PER CURIAM. [1, 2] This appeal is from the dissolution of a preliminary injunction and from the dismissal at the same time by the court, of its own motion, of plaintiffs' bill before answer had been filed. The appeal from the decree as to the first is dismissed, as there were reasonable grounds for the action of the court below. Hoffman v. Howell, 242 Pa. 112, 88 Atl. 877; Deal v. Erie Coal & Coke Co., 246 Pa. 552, 92 Atl. 701. The dismissal of the bill, not even asked for by counsel for defendant before an answer had been filed, was wholly irregular, and the action of the court in dismissing it must be reversed. The decree dismissing the bill is reversed, and it is reinstated with a procedendo, the costs below and on this appeal to be disposed of on final decree. The same day the rule was refused by the president judge of the court his colleague made an order staying the execution, pending "the making up and filing of the record in the equity case and until the complainants have had an opportunity to perfect their appeal from the decree entered to the Supreme Court." On the same day this staying order was set aside by the president judge of the court below, and this appellants allege was error, as he was without authority to do so at chambers. The staying order of the associate judge has expired by its own limitations, as the appeal in the equity case has been disposed of. The question of the authority of the president judge to set aside the vacating order of his colleague is therefore but a moot question. Appeal dismissed at appellants' costs. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes A. W. Henderson and F. C. Houston, both | down, leading his guest to think that he was of Pittsburgh, for appellant. going to stop. Rody P. Marshall, Meredith R. Marshall, and Harry Weisberger, all of Pittsburgh, for appellee. PER CURIAM. This action was instituted to recover from the estate of John Humbert, deceased, what the plaintiff alleges is due her under an oral contract with him, by which, as she avers in her statement of claim, "he agreed that in consideration of plaintiff's boarding, lodging, nursing, and caring for him during the remainder of his life he would make a will whereby he would leave to plaintiff his entire estate, which consisted of real and personal property." There was proof of performance by the plaintiff, and the trial resulted in a verdict in her favor. On this appeal from the judg ment entered on it, the main complaint of the appellant is that the case ought not to have been submitted to the jury, because the proof necessary to sustain plaintiff's case did not measure up to the law's requirement. A sufficient and proper answer to this is to be found in the following from the opinion denying the motions for a new trial and for judgment non obstante veredicto: "Testimony was heard at considerable length, which, if believed, was ample to establish her right to recover, not necessarily the sum claimed, but reasonable compensation. Evidence was offered by defendant which was sufficient to warrant the jury in finding against plaintiff, and had the verdict been adverse to her we would not have granted a new trial. Defendant's requests for instructions respecting the evidence necessary to support alleged contracts of the character here pleaded were affirmed and the jury instructed that the contract alleged should be closely scanned; that it must be sustained, if sustained at all, by very clear proof,' and that 'the burden rested upon plaintiff to sustain her claim by evidence which, tested by the rule stated, meets its requirements.'" Appeal from Court of Common Pleas, Armstrong County; J. W. King, President Judge. Action by J. S. Beck against the United States Railroad Administration (Director General of Railroads). Judgment for plaintiff, and defendant appeals. Affirmed. Argued before BROWN, C. J., and STEWART, MOSCHZISKER, FRAZER, WALLING, SIMPSON, and KEPHART, JJ. Harry C. Golden, of Kittanning, for appellant. H. A. Heilman and C. E. Harrington, both of Kittanning, for appellee. KEPHART, J. Plaintiff was injured, while riding as a guest in an automobile, through the negligence of the driver and appellant. The place of the accident was on a street at a much-used grade crossing in Kittanning, the injury occurring through a collision be tween a train of the Pennsylvania Railroad, then operated by the Director General, and the automobile. Plaintiff knew the conditions surrounding the place of the accident; the track could be seen for some distance by persons using the street; the view was unobstructed; and the accident occurred about 2 o'clock in the afternoon, June 22d. The driver of the automobile did not stop before reaching the crossing, but afterwards, with the car in high gear, retarded its speed on passing the houseline, driving on the tracks without using the brakes. The exact speed of the car was not shown, but it was stated to be the lowest obtainable in high gear. Appellant's negligence was speed and failure to give warning. The driver of the automobile admits he could have seen the train approaching in time to stop his car, had he looked. Plaintiff gave no warning of the impending danger known to him, and claims to be relieved because the driver was in the act of performing the duty which the warnNothing in the remaining six call for a ing would call forth, namely, to stop the car. retrial, and the judgment is affirmed. The case as presented by the plaintiff was for the jury, and the first, second, and third assignments are overruled. Judgment having been entered on the verdict in plaintiff's favor, this appeal is taken, and the sole question presented by the argument, oral and written, is whether the facts, as testified to, justified the plaintiff in withholding BECK V. UNITED STATES RAILROAD AD- the warning that the law demands from a guest to the driver. The rule recently stated in Minnich v. Easton Transit Co., 267 Pa. 200, 204, 110 Atl. 273, 274, is: "When dangers, which are either reasonably manifest or known to an invited guest, confront the driver of a vehicle, and the guest has an adequate and proper opportunity to control or influence the situation for safety, if he sits by without warning or protest and permits |