but a small part of the quarry and that the railroad | recover damages for about two acres of land of did not touch or affect the part so occupied : plaintiffs, taken and used by defendants for the construction of their railroad. Held, that the evidence was properly admitted. When the quarry was originally opened, a canal The property of the plaintiffs consists of about was the only available line of transportation for its thirty-seven acres of limestone land, which is chiefly products. The Reading Railroad afterwards built a branch in the neighborhood of the quarry but charged valuable for quarrying purposes. Previous to the an additional rate of ten cents per ton on all freight construction of the railroad of the defendants, the passing over the branch. Defendants' road was sub-facilities of the plaintiffs and of their tenants for sequently built to and across plaintiffs' lands: Held, that although the evidence as to whether this additional line of transportation was or was not an advantage to the owners of the quarry was a proper subject of consideration by the jury, yet evidence as to where plaintiffs sold stone they quarried on the property, and how they shipped it to market, was in admissible. Held further, that in consequence of the admission of this testimony, an offer by defendants to show that the rates of freight by rail had been reduced in consequence of the building of the new road, was improperly excluded. Upon a former trial of the case, witnesses were allowed to estimate the damages sustained by plaintiffs by calculating the number of tons of limestone under the surface of the right of way and multiplying that by the estimated price per ton. The Supreme Court held that such a method of fixing the value of the land was speculative and could not be applied to land taken by virtue of the right of eminent domain, and sent the case back for another trial. Upon the second trial the same witnesses estimated the damages at precisely the same sum as at the first trial, but instead of separating the land and stone, called it "stone land." Defendants proposed to ask upon cross-examination, whether the witnesses had not made a new arrangement of the items, or elements of damage, so as to enable them to fix the damages at the same total as before, but by a different process, and whether this was not done in consequence of the decision of the Supreme Court as above mentioned: Held, that the question was improperly excluded. Where the Court has properly instructed the jury, but the latter have disregarded the instructions, the remedy is not a writ of error, but an application to set aside the verdict. The Court instructed the jury "after you have ascertained that there is any damage, you will allow interest on that sum from May 19, 1885, to the present time:" Held, to be error. In actions resting on contract, interest is demandable as such; in actions growing out of a tort, it is not. In the former case the Court may properly direct its allowance; in the latter the question belongs to the jury. It may, or may not enter into their calculation of damages. transporting their product to market were limited to the Philadelphia and Reading Railroad, a branch of which extends from the main line of that company at Leesport to the plaintiffs' property, and the Schuylkill Canal, also operated by the Philadelphia and Reading Railroad Company under a lease. The line of the defendants is competitive to those of the Philadelphia and Reading Railroad Company. A trial, which resulted in a verdict for plaintiffs of $8040.64, was reversed by the Supreme Court in Reading and Pottsville Railroad Company v. Balthaser (4 Crum. 472; S. C., 21 WEEKLY NOTES, 253), where the facts are reported. not Upon the second trial the following questions arose: The plaintiffs offered to show that a portion of their property was, at the time of the location and construction of the railroad, in the The defendants objected because the property was possession of tenants under a lease. described in the petition as a reversionary interest, so that the testimony offered would create a variance, and because also the offer was irrelevant. The Court admitted the testimony. (First assignment of error.) The plaintiffs offered to show where they sold the stone which they quarried on the property, and how they shipped their product to market. Objected to as irrelevant. Objection overruled. Evidence admitted. (Second assignment of error.) The plaintiffs having been permitted, against objection by the defendants, to examine Walter W. Balthaser, with a view to showing that no advantages accrued to the plaintiffs' property from the construction of the railroad, the defendants proposed, upon cross-examination, to ask the witness whether the Philadelphia and Reading Railroad Company, whose branch extends from Leesport to the plaintiffs' property, did not, previously to the construction of the defendants' road, charge fifteen cents per ton for transporting the product of the plaintiffs' property from the branch to their main line at Leesport, and as to whether the said company did not, after the construction of the defendants' competitive road, discontinue the said charge, and carry the stone to Leesport free. Objected to. Objection sustained. (Third assignment of error.) Error to the Common Pleas of Berks County. Case by Mary Balthaser, widow of William Balthaser, Frank Balthaser, Walter W. Balthaser, Clara Herbein, wife of John Herbein, in right of said Clara, Mary B. Rieser, wife of James A. Rieser, in right of said Mary B. and Ellen Rothenberger, wife of Urias Rothenberger, in right of said Ellen, against the Reading and Walter W. Balthaser, one of the plaintiffs' witPottsville Railroad Company, now the Pennsyl-nesses, having, as aforesaid, been examined in vania Schuylkill Valley Railroad Company, to chief with a view to showing that the defendants' You railroad was of no benefit to the property, and age to the property at $12,000. Isaac H. Rahn having testified in chief that the plaintiffs shipped was the next witness, and he says $9000. Frantheir stone to market by canal, the defendants cis Kaufman names $9000. Reuben Wanner proposed, upon cross-examination, to ask him as says $5000. Conrad Hock names $9000. Wilto whether, since the construction of their com- liam Grater says $9000. George C. Hartman petitive railroad, the plaintiffs had discontinued says $7000. Harrison Epler says $8000. getting the coal, which they used in burning lime, see the several witnesses vary in their estimate by canal. Objected to. Objection sustained. of the difference in market value of the property. (Fourth assignment of error.) You are to take their testimony, examine it, and Walter W. Balthaser had, upon the previous weigh it. You have been upon the premises, and trial, made up his estimate of the difference in mar-you yourselves have seen the property, and thereket value by adding to the value of the land a valu-fore you will weigh the testimony in connection ation which he placed upon the stone supposed by with what your own eyes have seen." (Seventh him to underlie the railroad, at so much per ton. assignment of error.) The Supreme Court reversed the judgment which had been entered upon the verdict rendered upon such first trial, on the ground that the said company could not be charged with the value of the supposed stone. Upon the second trial, the same witness estimated the damages at precisely the same sum, but instead of separating the land and the stone, he called it "stone land," and retained his original figures. The defendants, with a view to showing his interest and motive, and so affecting his credibility, proposed to ask him whether he did not know that the Supreme Court after the other trial decided that the plaintiffs could not claim anything from the defendants for any alleged taking of stone, and whether he had not modified his mode of making up these damages in consequence of that decision, and in order to get around that decision, leaving the amount of his estimate the same, but pretending to get at it in a different way. Objected to. The defendants, by their first point, requested the Court to instruct the jury, that, as in the petition, "the plaintiffs had described their property, without excluding therefrom or mentioning the outstanding leasehold interest which Mary Balthaser and Walter W. Balthaser, two of the plaintiffs, testified was vested in Atkins Brothers as to part of their property at the time of the appropriation by the defendants, there could be no recovery under the pleadings and evidence." Refused. (Eighth assignment of error.) The defendants, by their ninth point, requested the Court to instruct the jury that they should "estimate the damages by the difference in the market value of the plaintiffs' property before and after the construction of the railroad, as affected thereby; that they should not allow more damages because the property was taken without the plaintiffs' consent or because it was taken by a railroad company, but that they should make THE COURT. You can inquire as to whether their estimate just as if the plaintiffs had volunhis estimate is different from what it was at the tarily agreed to part with their property for a last trial, with a view to contradiction. I do not reasonable compensation, and as if they had so think you should inquire what the Supreme agreed to part with it to an individual to be used Court has decided. You may inquire as to for the same purposes and in the same manner." whether he changed his estimates. Objection The Court affirmed this point, with a qualificasustained. (Fifth assignment of error.) tion that the reasonable compensation should be All of the plaintiffs' witnesses, excepting one," the market value of the property." (Ninth asupon cross-examination, admitted substantially, signment of error.) that in making up their estimates they had taken into account the quantity and value of the limestone which they supposed existed under the railroad. The defendants moved to strike out this testimony; the Court overruled the motion. (Sixth assignment of error.) The defendants asked the Court to instruct the jury to disregard the said estimates; the Court affirmed the point, but subsequently charged the jury upon the point as follows: "What, then, is the evidence? A number of witnesses were examined upon the part of the plaintiffs, and the damages which these witnesses have testified to that the property has sustained, that is, the difference in the market value, ranges from $5000 to $12,000. The first witness examined was Walter W. Balthaser, and he estimates the dam The Court also charged the jury," After you have once ascertained that there is any damage, you will allow interest upon that sum from May 19, 1885, to the present time." (Tenth assignment of error.) Verdict for plaintiffs for $6975.51. A rule for a new trial having been discharged, defendants took this writ and assigned error as above. Cyrus G. Derr, for plaintiffs in error. C. H. Ruhl (Daniel Ermentrout and Adam B. Rieser with him), for defendants in error. April 29, 1889. THE COURT. The admission of the evidence complained of in the first assignment of error was entirely proper as the case stood at the time. The defendants' counsel had, by their cross-examination, drawn from Mary Balt haser the statement that the Messrs. Atkins were | vious trial of this case witnesses were allowed operating the quarry on the lands of the plaintiffs to estimate the damages sustained by the plainat the time the railroad was located upon them, tiffs by calculating the number of tons of limeunder a lease from herself and children. In order stone under the surface of the right of way, to explain this answer and show that the lease to and multiplying that by the estimated price Atkins did not affect the plaintiffs' right to re- per ton, reaching a value of several thousands of cover, one of the sons, who made the lease, was dollars per acre. This was one of the reasons called for the purpose of showing that the lease for the reversal of the judgment by this Court covered but a small part of the quarry and that and sending it back for another trial. We held the railroad did not touch or affect the part so that such a method for fixing the value of land occupied by the Atkins. This was no necessary was speculative, and could not be applied to land part of the plaintiffs' case, and became important taken by virtue of the right of eminent domain. only because of the cross-examination of Mary It involves an uncertain estimate of the quantity Balthaser and for the purpose of explaining it. and quality of the stone, includes necessarily the For that purpose it was competent and relevant. use of labor and capital, requires skill and intelThe second assignment raises a very different ligent supervision on the part of the operator, and question. When the quarry was opened originally vigilance and success in the financial manageit would seem that the canal was the only avail- ment. No human mind can foresee the presence able line of transportation for its products. The of these elements of business success if the stone Reading Railroad afterwards built a branch be removed at the ordinary rate of quarrying, or across the Schuylkill River in the neighborhood forecast the profit or loss of actual operations. The of the quarry, but charged an additional rate of true rule is that which quits the realm of speculaten cents per ton on all freight passing over this tion and comes down to what is within the knowbranch, so that shipment of heavy freight over ledge of business men living in the neighborhood, this line does not seem to have been desirable for viz., what was the fair selling value of the property the owners of the quarry. The defendants' road before the defendants entered upon it? What is its was built to and across the plaintiffs' lands. | fair selling value as affected by that entry? The difWhether this additional line of transportation was ference is the true measure of the loss sustained by or was not an advantage to the owners of the quar- reason of the entry. But notwithstanding the plain ries was a proper subject for consideration by the manner in which this rule was stated when this jury, but the evidence referred to in this assign- case was here before, the witnesses on the last ment threw no light upon that question. It was trial placed their estimates of the plaintiffs' damnot important for the jury to know where the ages at the same sums as when they were examined yield of the quarry had been marketed in years on the former trial. Defendants' counsel asked gone by, or what line of transportation had been them on cross-examination whether they had employed before the new facilities were offered not made a new arrangement of the items or to its owners. The true inquiry was, whether a elements of the damage so as to enable them to broader market and better facilities for shipment fix the damages at the same total as before, but by were put within their reach by the building of a different process, and whether this was not done the defendants' road, or in other words, whether in consequence of the decision of this Court holdthere were advantages to be set off against ing that the value of the stone in place could the disadvantages arising from the appropria- not be fixed by the ton, and the total so reached tion of the plaintiffs' land for the right of way taken as the market value of the land. This of this road. The objection to this evidence the Court excluded. It was, however, a proper should have been sustained. The inquiry which cross-examination. It reached after the real it entered upon was not helpful or relevant. But basis on which the witnesses made their estias the Court admitted it, and so opened the sub-mate, and it afforded a test of the fairness and ject of the modes and cost of transportation exist- candor of the witnesses themselves. It was in no ing in former years, it is not easy to see on what sense an examination upon a legal question, or ground the defendants' offer, the rejection of upon the manner in which the witnesses underwhich is the subject of the third assignment, stood the rule laid down by this Court, but into was excluded. The offer was to show that rates the reason on which they acted. Knowing that of freight by rail had been reduced in conse- they had no right to make their estimate now as quence of the building of the new road. If this they had made it before, had they not, neverthesubject of freights had not been opened, the re- less, done so, and given a false color to their tesjection of this offer would have been right. Hav-timony? This was the force of the examination ing let the plaintiffs into this sort of proof, the proposed and it was clearly within the lines of defendants should have been permitted to reply. legitimate cross-examination. The errors asThe door should have been closed to both. The signed to the charge upon the subject of the duty fifth assignment is also well taken. On a pre-of the jury in the ascertainment of the damages cannot be sustained. The rule was correctly The judgment is reversed, and a venire facias stated by the learned Judge. He said: "All de novo awarded. the testimony from any part of the plaintiffs' witnesses who spoke of valuing the limestone underlying the railroad must be disregarded by Opinion by WILLIAMS, J. H. C. O. April 15, 1889. Rizzolo v. The Commonwealth. Criminal law-Practice-Change of venueJurors-Previously formed opinions — More names in jury wheel than required by Court rule, not ground for quashing the array-Confessions Involuntary-Practice in questioning accused before passing sentence. the jury, and the testimony of these witnesses Jan. '89, 412. should not hesitate to do. The ninth assignment relates to the direction to the jury to allow interest. This was technical error. The lapse of time between the happening of an injury and the time of trial is a proper subject to be considered by the jury in making up the amount of damages for which to render a verdict, but interest, as such, is not recoverable in actions ex delicto. In actions where a definite sum of money is demandable as a debt, interest at the legal rate is a matter of right, and the jury may properly be directed to include it in their verdict; but actions brought to recover unliquidated damages for a wrong done, proceed upon a different basis. The nature of the wrong, the attending circumstances, and the time when it was committed, are all for the jury, and may be properly considered in the adjustment of the amount of the verdict. The learned Judge said to the jury: "After you have ascertained that there is any damage, you will allow interest on that sum from May 19, 1885, to the present time." This would have been an appropriate direction in an action ex contractu, because interest is a legal incident of a debt, but is not justifiable in an action of trespass. We might not have reversed for this alone, but as the case goes back for other reasons, we again call attention to this well-settled distinction between actions resting on contract and those growing out of a tort, so far as interest is concerned. In the former interest is demandable as interest; in the latter it is not. In the former the Court may properly direct its allowance; in the latter the question belongs to the jury. It may or it may not enter into their calculation of the damages. Whether it shall or not depends on the judgment of the jury in view of all the circumstances of the case. If it is included in the verdiet, it is simply as one element of the damages sustained by the plaintiff and liquidated by the verdict. It is too late to ask at the trial for a rule to take the testimony of witnesses to prove facts alleged in a petition for a change of venue in a murder trial, on the ground that a fair trial could not be had by reason of the excitement and prejudice against the accused, when the latter has had a whole term in which to make such an application. The fact that a witness swore that 1554 names had been placed in the jury wheel instead of 1550, as provided by an order of Court, is not sufficient ground for quashing the array of jurors or the indictment. An opinion formed from reading the newspapers is not ground for excluding a juror who states that he can render a true verdict according to the evidence, uninfluenced by his previously formed opinions. Allison v. The Commonwealth, 99 Pa. 17, followed. The fact that a subordinate detective told the prisoner before he made a confession that he had better tell the captain all he knew and it would be better for untary when the captain, before hearing it, spoke to him as follows: "I tell you now, anything you say to me I shall use against you. It is my duty to do so. Now, if you feel like telling me anything, go ahead; but tell me nothing or tell me the whole God's truth." him," does not make the subsequent confession invol When, upon a capital charge, the jury have brought in their verdict of guilty, in the presence of the prisoner, if the Court asks him if he has anything to say requirements of the law have been complied with. It why sentence should not be passed upon him, all the is not necessary to say "sentence of death," when no sentence but that of death is possible. Error to the Oyer and Terminer of Luzerne County. Indictment against Michael Rizzolo for the murder of J. Brainard McClure. Plea, not guilty. On the trial, before RICE, P. J., defendant moved for a change of venue, alleging that he could not have a fair trial by reason of the great excitement and prejudice against him in Luzerne County. He also asked for a rule to take the testimony of witnesses to prove the facts alleged in his petition. The Court refused to grant either the petition or the rule (first and second assignments of error), but offered to hear at bar any testimony in support of the petition. Defendant then moved to quash the array of jurors and the indictment, because the order of Court for filling the jury wheel for 1889 specified 1550 as the number of names that should be placed therein, and he produced a witness who testified that he had counted the names on the list, and the number was 1554. Motions refused. (Third and fourth assignments of error.) The jury list having been called, counsel for defendant challenged for cause several jurors because they had formed opinions from what they had read in the newspapers about the murder, although they all said that they could render a verdict according to the evidence, uninfluenced by their previously formed opinions. The Court refused to allow the challenges. (Fifth assignment of error.) "When I got close to the forks of the road, McClure and Flanigan passed me, but I did not speak to them. When they got to the little hill they went slow and I followed them. I see Bevivino come out and shoot from the bushes. He On the trial the Court admitted the testimony shot McClure twice in the back; then he shot of Captain R. J. Linden, detailing a confession the other man, but I didn't think he hit him. made by the defendant to him in Philadelphia, under circumstances set out in the charge, infra, and also admitted the confession itself. (Sixth and seventh assignments of error.) The facts of the case appear in the general charge, which, inter alia, was as follows: "It would appear that on the morning of the 19th of October, Bernard McClure and Hugh Flanigan started from the works of Mr. McFadden, above Miner's Mills, to come to WilkesBarre, for the purpose of getting money to pay the men employed at those works. They went to the Wyoming National Bank, and there obtained twelve thousand dollars in money, largely paper money, and also some silver and smaller coin. This was put in a satchel, and they started upon their return. They stopped for a moment at Miner's Mills, at the post-office, and then started up the road which has been described to you by the witnesses. Mr. McFadden that same morning started down the road for the purpose of coming to Wilkes-Barre. On his way down, a short distance, which has been described to you by the witnesses, above what is called the White House road, he found his horse standing in the road, and upon examination found the dead body of Bernard McClure under the wheel. He made no further examination at that time, apparently, but returned to his works, and having got his superintendent they again returned to this scene. They then found, about 500 feet below where McClure lay, the body of Flanigan, he also being dead, having been shot. The money that had been in the wagon was gone. The horse had been shot. The physicians have described to you the wounds which McClure received. They have also produced two bullets which were taken out of his body. They have described the third wound in the head, and have testified that either one of these would have been fatal. These circumstances would be very strong evidence that not only the crime of robbery, but the crime of Then Vallilo came up in front of them and shot the other man twice in the face. I had a revolver in my hand and was running after them. The horse run away and McClure was hanging with his feet under the wheel. When they had gone about twenty or thirty yards the old man fell out and Vallilo ran away down the road, and Bevivino looked at me mad, and told me to come. I went with him and when they got to the place where they afterward found the horse he stopped and then Bevivino shot the horse and shot McClure again in the head. He then shot a good many times at the horse. I was standing still and he cursed me and got very white and said: "Here, you hold this gun and if anybody comes you kill them." I held it, and with the knife he cut the straps that held the valise to the buggy, then put the valise on his shoulders and said: "Let us go through here." It was raining and muddy and we went up and took the money and hid it a couple of miles from the scene of he murder; also the gun.' "In the same connection I read to you the testimony that he gave here upon the stand, as taken down by the stenographer : "When I got to this place they passed me.' Q. Who passed you?' A. Mr. McClure and Flanigan, they passed me.' When they passed me, I supposed the old man spoke, and he says, "How do you do?" I say, "How do you do ?" When they passed I walked with him, that is, the buggy was going not on a trot but pretty lively; and they got away from me-well, here to that officer out to the front door, little closer than that. When I got there, I was walking, I had an umbrella in my hand; I seen Bevivino come out of the bush and shot McClure once; after, he shot twice, I think, or three times, and McClure first. He was standing on the other side of the buggy, standing on the right side going up. After he shot McClure, McClure fell he stood a little while and then fell on the side. After he fell he shot |