directed a verdict for defendant as above stated. That single finding cannot be sustained as a special verdict. "It is the province of a special verdict to find and place on record all the essential facts in the case. This includes the disputed as well as the undisputed facts. What is not found by the verdict is presumed not to exist, and no inferences as to matters of fact are permitted to supply the facts themselves which the verdict should have found. In entering judgment, the court is confined to the facts found by the special verdict, and unless they are sufficiently found no judgment can be entered. The jury must find the facts and the court declare the law on the facts so found. Such are the requisites of a special verdict as held in all our cases." Standard Sewing Machine Co. v. Royal Ins. Co., 201 Pa. 645, 647, 51 Atl. 354; Kelchner v. Nanticoke Boro., 209 Pa. 412, 58 Atl. 851. Of course, the special finding is not important if under all the evidence the court was justified in directing a verdict for defendant; and we have considered that question and concluded that the case was for the jury. If with eight or ten passengers standing on the rear platform the car went around the curve with such high speed as to cause a lurch sufficient to bump the passengers so standing against each other and thereby cause plaintiff to fall through the open door, that would be evidence of defendant's negligence. combination, and would have deprived the jury of its right to render a general verdict. It is undoubtedly proper for the court in certain cases to request the jury to find a special verdict, or to make special findings of facts in addition to the general verdict, but that is not what was done here. The practice adopted by the court below may seem to have been sanctioned in Union Trust Co. of N. Y. v. Gilpin, 235 Pa. 524, 84 Atl. 448; but that was an action of assumpsit, and the several findings may have embraced all the essential facts. The objec tions there were, not to the right of the court to so submit questions to the jury, but to the manner in which they were submitted and to certain particular questions. There the appellant seems to have joined in that method of submission and requested the court to submit certain other questions, as we learn from the paper books. And in O'Boyle v. Kelly, 249 Pa. 13, 19, 94 Atl. 448, the method of submitting the case was unimportant, for we there held "that the trial judge would have been entirely justified in giving binding instructions for the plaintiffs." [5] As the question submitted to the jury here was not of itself conclusive of the rights of the parties, and as the court suggested that after its answer he would instruct the jury upon the further questions in the case, we cannot say that plaintiff's rights were waived because his counsel failed to object to that question and call the court's attention to certain evidence relating thereto. Before the verdict was rendered, plaintiff secured an exception to the charge of the court and answers to the points in the usual form. [3, 4] It is the duty of a passenger to go inside of the car, and if he is injured while standing upon the platform the burden is upon him to show that there was no unoccupied room inside of the car, or, if there was such room, that it was impracticable for him to reach it because of the crowded condition of the passageway leading thereto. Failing [6] In view of plaintiff's contention that he to meet that burden, he is chargeable with was unable to pass into the car because of contributory negligence and cannot recover. passengers standing therein, the question as This question is fully considered in the opin- to whether they were standing in the front ion of our Brother Mestrezat in Elmer v. or rear end of the car became of some moPittsburgh Rys. Co., 251 Pa. 505, 96 Atl. ment; and in our opinion the court erred in 1054. See, also, Renney v. Webster, Mones-charging the jury that it was a minor circumsen, Bellevernon & Fayette City St. Ry. Co., 50 Pa. Super. Ct. Rep. 579. The special finding that there was available space inside the car where plaintiff could have stood, had he chosen to do so, seems to ignore the question as to its being practicable for plaintiff to reach such space; at least, the question leaves that matter in doubt. But it is wrong in a broader sense. A case should be submitted to the jury as an entirety, and not in fragments, and so that, whichever way they find, judgment may be entered thereon. Had the question here been answered in the neg-tained. ative, it would have necessitated the submis- The judgment is reversed, and a venire fasion of various other questions singly or in cias de novo awarded. stance and did not make much difference one way or the other. We therefore sustain the seventh assignment of error relating thereto. The first and fifth assignments of error referring to the action of the court in submitting the one single question to the jury are also sustained, as is the sixth assignment to that part of the charge directing the jury to find for the defendant. And as the court only instructed the jury as to one question, the ninth assignment of error, which complains of the charge as a whole, is also sus (Pa. (258 Pa. 602) in, viz., H. G. Luker, president, Charles B. COMMONWEALTH ex rel. HUSTON et al. Ellermeyer, vice president, and J. W. Glenn, v. LUKER et al. Appeal of DUFFY. (Supreme Court of Pennsylvania. 1917.) treasurer, to show by what warrant they held and exercised their respective offices; also demanding that Charles B. Ellermeyer show June 30, by what authority he acted as a director of said corporation. several defendants filed a motion to quash, On January 6, 1917, the which prevailed; hence this appeal. Plaintiff's suggestion avers, inter alia, that, owing to certain facts therein set forth, the elections by which defendants claim to hold their respective positions were illegal and void. various grounds, one of which is to the effect The motion to quash rests upon that the suggestion is bad because it asks that the titles to four distinct offices be adjudged under one writ, when the pleading itself discloses that the election to one of these 1. QUO WARRANTO 20—EXERCISE OF CORPORATE OFFICE DISCRETION OF TRIAL COURT-QUASHING OF WRIT. Where stockholders in a private corporation filed a suggestion for writ of quo warranto to require respondents to show by what authority they held the offices of president, vice president, treasurer, and director, and where the validity of two elections were involved, one for directors by the stockholders and one for general officers by the directors, it was not an abuse of judicial discretion to quash the writ, although Quo Warranto Act June 14, 1836 (P. L. p. 621) § 8, gives the right to include several defendants in a single quo warranto proceeding when the titles to all the offices in-offices was held at a different time and by a volved "may be properly determined by one set of electors entirely distinct from those writ"; that being a matter for the trial court who participated in the balloting for the to pass upon. other three offices; the stockholders of the corporation being the electors in the first instance and the directors in the second. discusses several reasons for quashing the While the opinion filed by the court below writ, yet it omits the one to which we direct attention; although the latter impressed us so the question of the right of relators to the strongly that a reargument was ordered "on present writ, there being two elections involved, one for directors by stockholders, and the other by directors for general officers." 2. QUO WARRANTO 26-TITLE TO OFFICESEPARATE ELECTIONS-Procedure. In such case, the proper practice would be to file separate suggestions questioning the validity of the separate elections and to decide first the case involving the election of directors, as the judgment thereon might render unnecessary a trial involving the directors' election of the general officers. 3. QUO WARRANTO 62-MOTION TO QUASH -APPEAL. A writ of error does not lie to the refusal of a quo warranto, and on appeal from an order of the lower court refusing such writ the review by the Supreme Court is as on certiorari, and it will not reverse the action of the court below unless it appears that such court has abused its discretion. 4. QUO WARRANTO 6-TITLE TO OFFICEDISCRETION OF TRIAL COURT-MOTIVE. Where stockholder in a corporation applies for a writ of quo warranto to protect his property rights the lower court's discretion is purely legal, and where the rights at law are prima facie shown by the suggestion, the plaintiff is entitled to an opportunity to establish them, and his motives are no valid reason for refusing him relief. Appeal from Court of Common Pleas, Armstrong County. Petition for quo warranto by the Commonwealth of Pennsylvania, on relation of Charles C. Huston and Donald C. Duffy, against H. G. Luker and others. From an order quashing the writ, relator Duffy appeals. Appeal dismissed. Argued before BROWN, C. J., and MESTREZAT, MOSCHZISKER, FRAZER, and WALLING, JJ. Harry C. Golden, of Kittanning, and Bernard J. Myers and John E. Malone, both of Lancaster, for appellant. R. L. Ralston, of Kittanning, for appellees. MOSCHZISKER, J. On December 20, 1916, at the suggestion of two stockholders of the Kittanning Brewing Company, the court below directed a writ of quo warranto requiring the three respondents named there cient to sustain the order appealed from, it is Since the ground just referred to is suttinot necessary to determine any of the questions presented on the first argument of this reference to some of them, after first disposcase; it may be well, however, to make brief ing of what we have already indicated as the controlling point for determination. In Com. ex rel. Gast v. Pfromm, 255 Pa. 185, 488, 489, 100 Atl. 276, 277, we recently had occasion to discuss the Quo Warranto Act of June 14, 1836, P. L. 621, and there said: "The titles to several distinct offices may be determined at one and the same time. Com. ex 601 [32 Atl. 111], is an instance where, at the rel. Morris et al. v. Stevens et al., 168 Pa. 582, suggestion of a stockholder, the offices occupied by an entire board of management of a water company were in controversy, and, since the title to all of them depended on the same votes lidity of that election would be equally conat the same election and a decision on the vaclusive as to the rights of all,' we determined ceeding, adjudging the titles to all the places the whole matter in a single quo warranto proinvolved; and, perhaps, this would be proper practice wherever the relator occupies a position, or has an interest, which entitles him to question the right of office of each and every ents, particularly if the same facts are so far of the parties named or brought in as respondapplicable and common to all that a decision on the validity of the election of any one of them would, ex necessitate, rule the cases of the others. In the present instance, however, we have a different combination of circumstances; here the rights of three persons to two separate of- abuse of discretion; and, since there is nothfices, filled at different elections, held at dif- ing in the record which plainly indicates ferent times, by different electors, are involved. We then held that the several rights to the different offices could not be determined in the one proceeding. that, in this particular instance, the rights of all parties to the various offices involved could best be determined at one and the same time, we cannot convict the court below of such an abuse. That which we have already written is sufficient to dispose of this case; but, since we intend to dismiss the appeal without prejudice to the rights of the plaintiff, if he so sees fit, to ask for separate writs, one against Mr. Ellermeyer as director, and the other against the three general officers of the brewing company, we shall briefly touch upon some of the points discussed in the opinion of the court below. While enlightening, the case just cited does not rule the present one, for the controlling point upon which the former turned was that the relator had no special interest which gave him a right to raise the question of the title to the second office in controversy; but another excerpt from the opinion in the Pfromm Case is of interest in connection with the question now before us. There, as here, the theory of the plaintiff was that, since one of the persons who participated in the balloting for the second office had not himself been duly elected to the board which constituted the electors of that office, both the validity of his election and that of the person chosen through his ballot should be determined at the same time. In passing up-order appealed from. The authority just on this point, we said: ed. to oc [3, 4] In Com. ex rel. Pughe v. Davis, 109 Pa. 128, we ruled that a writ of error did not lie to the refusal of a quo warranto; hence the present review is on certiorari, and the only matter properly before us is the cited involved a public office, and both there, "The learned court below, apparently, acted and in numerous other such cases, we have upon the theory that, since the vote cast by said that a court's exercise of discretion in Mr. Kelly was necessary to the election of Mr. refusing a quo warranto would not be rePfromm, * * it was proper to determine viewed. In that particular class of cases the right of the latter * cupy the office to which he had thus been elect- (involving public office) we have gone even On this theory, however, in a single quo further and held that the motive of the rewarranto proceeding, instituted at the sugges-lator might be considered by a court in extion of any private individual possessed of a personal interest sufficient to entitle him to the writ, all such official acts of either Mr. Kelly or Mr. Pfromm or, in fact, of any other person placed in councils through their votes, might be inquired into and, in effect, set aside on one writ of quo warranto, and so on without limit; but such is not the law, and, if it were, it would inevitably lead to great confusion. [1, 2] In the present case, if the election by the stockholders of Mr. Ellermeyer as a director, and the choice of the general officers by the directors through Mr. Ellermeyer's presence or vote, can properly be inquired into and determined in one quo warranto proceeding, then there is no logical reason why, on a single writ, all elections of every sort, kind, and description, which the present board of directors might make, during any period of time, could not be brought into question in single proceeding, on the ground that one director, whose presence was necessary to a quorum, had not been properly chosen. As pointed out in Com. ex rel. Gast v. Pfromm, supra, if such a practice were permitted, it would inevitably lead to unwarranted confusion in the trial of cases of which class. ercising its discretion as to the issuance of the writ; but we have been pointed to no authority, and have knowledge of none where, in a case like the one at bar, involving the property rights of a stockholder in a private corporation, it has been held that a court of law, in the exercise of its discretion as to issuing a quo warranto for the protection of such property rights, might consider the relator's alleged motives, as was done by the learned court below in the present instance. Under such circumstances, if the writ is applied for in due form, the discretion to be exercised is purely legal, and, where rights at law are prima facie shown by the suggestion, the plaintiff is entitled to an opportunity to establish them upon a writ of quo warranto. Com. ex rel. Gordon et al. v. Graham et al., 64 Pa. 339; Com. ex rel. Morris et al. v. Stevens et al., 168 Pa. 582, 32 Atl. 111; Com. ex rel. v. Stevenson, 200 Pa. 509, 510, 50 Atl. 91; Com. v. Straus, 32 Pa. Super. Ct. 389, 390. Here, both the suggestion and the motion to quash suggest many nice questions of fact and law, which can best be determined when, and if, fully developed at It is true that section 8 of the act of 1836, trial; we are not called upon to consider supra, gives the right to include several de- any of them at the present time, but we deem fendants in a single quo warranto proceeding, it proper to say that, should this controversy when the titles to all the offices involved be further pursued, the correct practice "may be properly determined by one writ"; would be to try first the cause involving the but, in each case, this is a matter for the election of directors, since the judgment trial court to pass upon. Here, the court therein will, in all probability, control and, below quashed the writ; thereby, in effect, perhaps, make unnecessary a trial on the refusing to permit such an inclusion. Hence writ involving the election of the general the burden is upon the appellant to show an officers, The appeal is dismissed without prejudice, cured certain work to be done on a school as more fully indicated in the body of this building without calling for competitive bids opinion. in violation of section 617 of the School Code of May 18, 1911 (P. L. 309), which provides that: "Every contract in excess of three hundred dollars ($300), made by any school district in this commonwealth, for the introduction of heating, ventilating, or lighting systems, or the construction, reconstruction, or repair of any school building, or work upon any school property, shall be awarded to the lowest and best bidder, after due public notice has been given, upon proper terms asking for competitive bids." The proceeding was begun under section 217 of the Code by petition of resident tax Under School Code May 18, 1911 (P. L. 321) $217, the removal of the directors of a school district for the causes specified by section 617 is within the lower court's discretion; and, no express right of appeal being given, the Su-payers of the district, setting forth that the preme Court will consider the matter as before affairs of the school district were conducted it upon certiorari only, and will review the rec- by the board through committees, among ord only so far as necessary to ascertain wheth- others a building committee consisting of er the lower court exceeded its jurisdiction or three members, which let a contract for labor abused its discretion. 2. SCHOOLS AND SCHOOL DISTRICTS 53(5)- and materials amounting to more than $300, DIRECTORS OF DISTRICT-REMOVAL-DISCRE- in violation of section 617 of the Code. Other TION OF LOWER COURT. On a petition under School Code May 18, 1911 (P. L. 321) § 217, by resident taxpayers of a school district to declare the seats of the directors vacant, alleging that they had let a contract amounting to more than $300 without a competitive bidding, in violation of section 617, where it appeared that the directors had let a number of contracts for repairs, each of which was for less than $300, but the aggregate amount of which was more than $300, without a competitive bidding, and where, though there was no actual fraud or dishonesty, the contracts indicated an intention to avoid the statute, their removal was not an abuse of the trial court's discretion. 80(2) 3. SCHOOLS AND SCHOOL DISTRICTS -CONTRACTS OF SCHOOL DIRECTORS-MANDATORY STATUTE. Section 617 of the School Code of May 18, 1911 (P. L. 350), requiring that all contracts for work on school buildings or property in excess of $300 shall be awarded to the lowest bidder after due notice asking for competitive bids, is mandatory, calling for strict compliance on the part of the school officers. Appeal from Court of Common Pleas, Carbon County. Petition by resident taxpayers and citizens to declare the seats of Henry Stout and others, the Board of Directors of the School District of the Borough of Summit Hill, va cant and to appoint others to their places. From a decree removing them from office as directors, the directors appeal. Affirmed. Argued before BROWN, C. J., and MESTREZAT, MOSCHZISKER, FRAZER, and WALLING, JJ. Ben Branch, of Nesquehoning, Arthur L. Shay and Charles A. Snyder, both of Pottsville, and David Davis, of Summit Hill, for appellants. Ellsworth E. Scott, of Summit Hill, and Leighton C. Scott, of Mauch Chunk, for appellees. FRAZER, J. This appeal by defendants is from a decree of the common pleas, removing them from the office of school directors of the borough of Summit Hill, for having pro stated violations of duty were charged in the petition. As the action of the court below, however, was based on the violation of section 617 alone, their consideration becomes unnecessary. The work in question was chiefly in connection with certain alterations in the third floor of an old school building. This floor contained four rooms lighted by twelve dormer windows, and was not equipped with a ventilating system, nor provided with sufficient light to meet the requirements of the School Code. As a result of these deficiencies a medical inspector notified the board that alterations must be made before using the rooms for school purposes. In conformity with instructions received at a meeting of the board, the building committee entered into a contract with a building contractor to install new dormer windows adjoining the old ones, thus doubling the lighting space, for the sum of $290, which contract was approved by the board. Upon commencing work under this contract, the frames of the old windows were discovered to be in such The of the work must necessarily exceed $300, | act alleged to have been violated, and there the defense principally relied upon being justification of their action because of insufficient time to advertise for bids and secure the completion of the desired changes before the opening of the next school term. The court refused a request for a finding to this effect, also a request to find that no plan or conspiracy existed on the part of the members of the board, or some of them, to evade the provisions of the School Code relating to advertising for bids before entering into contracts exceeding the sum of $300, and stated that, although there was no actual fraud or dishonesty, the rendering of several separate bills for the repairs, each for a less amount than $300, indicated at least an intention to evade the requirements of the act. can be no doubt that respondents were fully informed of the charge brought against them. A petition to declare an office vacant because of specified misconduct of the incumbent and to appoint another in his stead cannot fail to inform all concerned that the purpose is to remove from office for the cause alleged. [3] Section 617, requiring that all contracts for work on school buildings or property in excess of $300 "shall be awarded to the lowest and best bidder after due notice has been given, upon proper terms asking for competitive bids," is mandatory. The use of the word "shall" leaves no room for the exercise of either option or discretion on the part of the board, in so far as contracts exceeding the amount stated are concerned. Courts [1] Under section 217 of the School Code, have uniformly held provisions in statutes the removal of directors for the causes al- requiring the obtaining of competitive bids leged is a matter within the discretion of the for municipal or other public improvements court below. No express right to appeal is of all kinds to be mandatory, calling for given, and therefore this court will consider strict compliance on the part of municipal the matter as before it upon certiorari only, officers. Philadelphia Company V. Pittsand will review the record so far as may be burgh, 253 Pa. 147, 97 Atl. 1083; Edmundnecessary to ascertain whether the court be- son v. Pittsburgh School District, 248 Pa. low exceeded its jurisdiction or abused its 559, 94 Atl. 248. To hold such requirements legal discretion. The proceeding under the directory merely would defeat the very obpresent code is analogous to a proceeding un-ject the Legislature had in view in inserting der the act of June 6, 1893 (P. L. 330), providing for the removal of school directors in certain cases. In re Slippery Rock Township School District, 222 Pa. 538, 71, Atl. 1085; Ross' Appeal, 179 Pa. 24, 36 Atl. 148. An examination of the testimony shows the conclusions reached by the court below are amply supported by the testimony, and, as the fact of violation of the sections of the Code requiring advertisement was not disputed, it was for the court below to say whether or not the excuse offered by defendants was sufficient to relieve them from the penalty im posed by the act. [2] Appellant argues that as the petition in the present proceeding asks that the seats of the school directors be declared vacant, the court was without power to remove respondents. Consequently the petition should have been dismissed. It is true the petition asks that a rule be granted to show cause why the seats of the respondents "should not be declared vacant and other persons appointed in their stead" and section 217 of the Code gives the court power "to remove said board" or any of its members, if in its opinion a duty imposed on them has been neglected, "and appoint other them. The decree of the court below is affirmed. (259 Pa. 51) LEONARD v. BALTIMORE & O. R. CO. (Supreme Court of Pennsylvania. June 30, 1917.) 1. DAMAGES 142-TORT-PLEADING. Damages of a special nature not the usual consequences of the wrong complained of must be specially averred so that defendant may be informed of the claim and given an opportunity to prepare his defense, but where the action is for personal injury the jury, without special averment, may consider pain and suffering, expense incurred for medical treatment, and loss of time and inability to work, as they are the natural and usual results. 3. DEATH 52-DAMAGES-PLEADING. In an action for damages for the death of plaintiff's husband from negligence in ejecting him from a train at a dangerous place where he was willfully and wantonly killed by a passquali-ing train, where the statement claimed damfied persons in their stead." The technical ages in a certain sum, and also claimed exvariance between the wording of the petition emplary and punitive damages, and averred deceased's occupation as a farmer and his earnand the act is not such as requires a rever-ings, and sought to recover funeral expenses, sal. Section 217 is the only one in the Code providing for the removal of school directors from office for neglect of duty. The petition specifically sets forth the sections of the loss of companionship, etc., and where it appeared that "exemplary" damages was intended loss of deceased's earnings was admissible withas "compensatory" damages, testimony as to the out amendment. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |