defendant should pay the plaintiffs a fixed sum of money which we had found from the evidence was due and owing from the defendant to the plaintiffs; the other would be an interlocutory decree finding that the plaintiffs were entitled to an account from the defendant and referring, if necessary, the matter to a master, or assessor, to state the account. The evidence before the court in this case is certainly insufficient to warrant the court in finding that C. N. Brady owes and is indebted to the plaintiffs in any specific sum. The most that the testimony of the plaintiffs (who were the only witnesses examined) established was that they had business transactions with the defendant, which if fully settled would show that he was indebted to them. In the eleventh paragraph of their bill they admit that a production of "the books, papers, inventories and accounts of the Atlas Glass Company is essential to the final and complete settlement of the rights and liabilities of the plaintiffs and defendant." These books and papers, inventories and accounts were not laid before the court by the plaintiffs, nor did they ask the defendant to produce them at any time during the trial, nor did it appear that any legal steps were taken to have the defendant or the custodian of them produce them at the trial. The plaintiffs closed their case without giving the court any intimation further than what is contained in the bill, that they desired the court to examine these books with the view of fixing the defendant's liability. We take it, therefore, that the plaintiffs have not shown that they are entitled to a final decree for the payment of any money due them by the defendant. Their testimony is not sufficient to warrant such decree. If not entitled to such a final decree, are they to an interlocutory decree of account have against the defendant? The only account that the court could decree would be an account as between the five stockholders of the Atlas Glass Company. The share that C. N. Brady by his agreement of October 26th assumed to pay the plaintiffs was their share of the property that belonged to these five stockholders jointly and until that share is ascertained by settlement embracing all of them, his liability cannot be fixed. This, in our opinion, makes J. W. Paxton and C. E. Blue and the Atlas Glass Company necessary parties to this suit. If we make an interlocutory decree for an account, it should be for an account in which all five of these stockholders have a direct pecuniary interest. They as the supreme authority in the corporation had taken certain property out of the control of the corporation and agreed to have a committee of their number sell and dispose of it and divide the proceeds equally among themselves. So far as this property was concerned it matters not that R. J. Beatty and George Beatty had transferred their stock in the Atlas Glass Company to C. N. Brady. They all recognized the arrangement to thus close up the business of the company, and the creditors being provided for, there certainly was no one else that could object; and in making the final settlement of the disposition of that property each one of the five stands on an equal footing and each is a necessary party to a proceeding in equity which involves an interlocutory decree of account in order to ascertain the share of any one of them in the property that belonged to them in common. We take it, therefore, that we cannot make against the defendant an interlocutory decree, because all the necessary and indis pensable parties have not been brought into court. It is objected, however, that the plaintiffs' claim is against C. N. Brady on his agreement of October 26 and the plaintiffs do not want and are not seeking a final decree against J. W. Paxton and C. E. Blue. If this is true, then would not the remedy against C. N. Brady be an action at law for the breach of the covenants of that agreement? If certain papers, books, inventories and accounts were in the custody of the defendant, or under his control, that must first be examined in order to properly prosecute and present the plaintiffs' claim to the court, and access to the same had been denied the plaintiffs, a bill of discovery in aid of the action at law might be resorted to if a duces tecum would not afford them the necessary. relief. If it should be contended, however, that the only remedy at law that the plaintiffs would have against the defendant on his contract of October 26, 1901, would be account render and that their bill is a substitute for that action under the provisions of the Act of October 13, 1840, and for discovery in aid of the relief prayed for, the answer is that it is not, for the reason that the certificate required by that act is want ing and there is no prayer nor sufficient disclosure of an intention to make the bill one of discovery. Our conclusion therefore to grant the motion of the defendant to dismiss the plaintiffs' bill, briefly stated, is based on the following propositions: Brady of their interest in the stock on hand, etc., is clear from the subsequent conduct of the parties. The interest of the Beattys in the contract of October 25th remained as it was; they helped to settle up the business and received payments on their shares under it. Third. That even if the plaintiffs were entitled to bring an action of account render against the defendant under the contract of October 26, and of discovery (the books and papers necessary to establish their claim being in the control of the defendant) this bill in its present form cannot be taken as a substitute for such action under the provisions of the Act of October 13, 1840, and for dis Fourth. That the testimony of the two plaintiffs is not sufficient to entitle them to any relief under their bill. And now, October 20, 1903, this cause came on to be heard and was argued by counsel, whereupon, upon due consideration, it is ordered, adjudged and decreed that the defendant's motion to dismiss the plaintiffs' bill be sustained and that said bill be and it is hereby dismissed at the costs of the plaintiffs, for the reasons set forth in the adjudication herewith filed. First. R. J. Beatty, George Beatty, C. N. Brady, J. W. Paxton and C. E. Blue being all the stockholders of the Atlas Glass Com-covery. pany by their agreement of October 25, 1901, severed "the manufactured stock and materials for manufacture and packages with stock and materials" from the machinery of said company and after that date said manufactured stock and materials, etc., belonged to them in common to be sold and the proceeds distributed between them, and that the agreement of October 26, 1901, between C. N. Brady and R. J. Beatty and George Beatty and the concurrent assignment by the Beattys of their certificates of stock to C. N. Brady did not abrogate this agreement, but were made subject to it; and that in any bill in equity involving the sale of that property and a distribution of the proceeds, all of the five stockholders and the Atlas Glass Company should be parties either plaintiff or defendant. Second. That for any breach of the contract of October 26, 1901, by C. N. Brady not involving an accounting and settlement by and between the five stockholders, the plaintiffs have an adequate remedy at law; that said contract is in the nature of a guaranty, that is, that R. J. Beatty and George Beatty will receive their value of the stock, etc., to be disposed of by the five stockholders the contract in no way affected the remedy that the Beattys had to force a settlement under the contract entered into by the five on October 25th and ascertain the share that they were entitled to. That the contract of October 26th was not intended as an out and out sale of the interest of R. J. and George Beatty to C. N. For plaintiffs, Todd & Wiley and John C. Bane. For defendant, Hubbard & Hubbard and T. F. Birch. [From Harry Russell Myers, Esq., Washington, Pa.] Master's Duty to Keep Safe the Servant's Working Place. It is well settled that a master is under a non-delegable duty to provide a safe working place for his employees. It is also well settled that he must by proper inspection and repair provide that the place shall not later become unsafe through natural causes. It is not so well settled that there is a similar duty where the subsequent unsafety is due to the acts of the servants themselves in the progress of their work. It is submitted, however, that third case should be assimilated to the other, and a recent New York decision is authority for that view. Employees engaged under a foreman in excavat ing, undermined a mass of lime, rendering | tive the principal case, a sufficient interval it unsafe. The plaintiff's decedent sent to had not elapsed since the place became work under it was killed. As it appeared dangerous. It is believed possible to suggest that by a reasonably frequent inspection the the following rule as consonant with the master could have discovered the danger, cases: the master is liable on the basis of his he was held liable; Simone v. Kirk, 173 N. non-delegable duty to provide a safe workY. 7. ing place only in those cases where a definite interval, within which inspection should have been made, has elapsed from the time of the creation of the danger to the time of the injury, the length of this interval to be determined by what is reasonable from the nature of the work. For example, as a usual thing workmen using scaffolding cannot recover against the master for injury due to faulty construction; O'Connor v. Neal, 153 Mass. 281. But there comes a time beyond which a master must inspect and himself assume the responsibility for such construction; Benzing v. Steinway, 101 N. Y. 537; see also Gulf, etc., R. R. Co. v. Redeker, 67 Tex. 181, and Lovegrove v. London R. R., 16 C. B. 668. These cases, like others, are indeed often explained by well kown rules applicable only to the special subject matter. But these rules, even when helpful, are clumsy in justice, and rather rules of thumb than principles of law. The test suggested, however, has an application to the whole subject, and offers an explanation for many otherwise incomprehensible cases Cf. Mather v. Rillston, 156 U. S. 391; and New England R. R. v. Conroy, 175 U. S. 323. The principal case is an illustration of its application. Harvard Law Review. In the first two classes mentioned above, if a master delegates to a servant the permance of his personal duty to provide and maintain a safe place for work, as has been seen, he is liable to his other employees for servant's negligence in performing it. This liability does not arise from the doctrine of respondeat superior, for, if it did, the fellow servant rule would be a defense. It is rather a part of that public policy which gives rise to the personal duties themselves - the necessity of protecting human life. It is clear that masters would avoid their personal responsibility, if, by delegating it, they could do so. The rule therefore results that there are certain duties securing safety with regard to the negligent performance of which by his servant a master cannot assert that his other employees have assumed the risk. The reason for the existence of this rule would demand its extension to the third class. The humane policy of protection would come to nothing, if the master, after originally providing a safe place, were allowed to permit the progress of the work to surround the servants with unnecessary dangers. If the dangers are necessary, however, of course the master is not expected to remove them. This distinguishes the important cases where the master having discovered the danger, a servant is sent to remove it, and is injured. He is held to assume the risk; Perry v. Rogers, 157 N. Y. 251; Murphy v. Boston & Albany, 88 N. Y. 146. But though the master must remove unnecessary dangers, practical considerations, and many decided cases, show that he cannot be held to remove them at every moment of the word; see Cullen v. Norton, 126 N. Y. 1, 6. The idea therefore suggests itself that he should remove them from time to time. A non-delegable duty must be imposed on him to inspect and repair at certain fixed intervals. Such a conception explains most of the cases. Thus in all of the cases not already distinguished which were relied upon to nega- | by an employee. A HUSBAND is held, in Brock v. State (Tex. Crim. App.) 60 L. R. A. 465, not to be able to waive the provisions of a statute that his wife shall in no case testify against him in a criminal prosecution except for an offense committed against her. THE storage of gunpowder by a fuse manufacturer in quantities necessary for his business, which is located in a proper place and is conducted with the utmost care, held, in Kleebauer v. Western Fuse & Explosive Co. (Cal.) 60 L. R. A. 377, not to be a nuisance per se, so as to render him liable for injuries caused to neighboring property by the malicious explosion of the magazine Pittsburgh Legal Journal he was charged and paid the sum of ten dollars a week to A. J. Claney, or to Catherine Claney, the son's wife, she being the daughter-in-law of the decedent. 2. During this period he required and received constant care and nursing, which was rendered chiefly by and under the direction of Catherine Claney. To some extent this burden was shared by A. J. Claney; by the other members of his family; by relatives and friends of his family, and to a very limited extent by decedent's other sons, James and William Claney. 3. The decedent expressed his constant. preference for the attention and nursing of Catherine Claney; and to a number of reputable witnesses, among them his pastor and his physicians, he declared in her presence and in her absence that he wanted her paid, and well paid; that she took good care of him; that she was like a mother to him, and similar expressions. 4. Catherine Claney died on the 18th day of August, 1903, intestate, leaving her husband, A. J. Claney, and three children, A doctor's call-books are not evidence in a claim Margaret, Jane and Elizabeth, to survive. for medical services. No. 268 Sept. T., 1903. She had made no claim upon decedent in his lifetime for additional compensation, nor did she in her lifetime make any claim Opinion by MILLER, J. Filed October therefore, although she lived more than 30, 1903. Exceptions were properly filed to the account. The evidence sustains the second exception. Testimony taken on the other exceptions shows the account to be substantially correct, for which reason said exceptions are not pressed, and they are accordingly dismissed. fourteen months after the decedent. This claim is presented by her administrator. Her heirs are her husband and children above mentioned. 5. That under the will of decedent A. J. Claney, husband of the deceased claimant, received a specific legacy of $2,000, and in addition thereto received one-third of the The matters remaining in controversy are residuary estate. two claims presented for payment. The first is that of Albert J. Brush, administrator of the estate of Catherine Claney, for services to nursing and caring for the decedent from August 30, 1901, to June 25, 1902, a period of forty-two weeks and five days at $20 a week, amounting to $854.25. The evidence warrants the finding of the following facts: 1. The decedent, Hugh Claney, came to live with his son, A. J. Claney, about August 30, 1901, an aged and very sick man. He remained there until his death on the 25th day of June, 1902, during all of which time. 6. That by deed dated April 14, 1902, duly recorded, the decedent conveyed to Margaret, Jane and Elizabeth Claney, children of A. J. Claney and Catherine Claney, his wife, the fee, and to A. J. Claney the life estate of certain property valued above five thousand dollars, which property is held by said vendees under the terms of said deed. 7. That no express contract existed between the decedent and the deceased claimant for the payment of any additional compensation for nursing or services. 8. Decedent paid by contract promptly, not only the claimant, but the other members of his family with whom he lived from time to time. The facts in this case show clearly a family relationship; while not that directly of parent and child, it is so close to it that in effect it amounts thereto. The real claimants are A. J. Claney the son, and his three daughters, the grandchildren of the decedent. They would be the distributees in equal share of any amount awarded to the administrator of Catherine Claney, the wife and mother. If she were living and in her own right presented this claim the situation might be somewhat changed. It is not necessary to refer to the long line of authorities reiterating the principle that where the family relationship exists, clear proof of an express contract must be produced. The cases cited by the learned counsel for claimant in his well prepared brief, that the relationship of parent and child cannot be applied to father-in-law and daughter-in-law fails in this case, because one of the real claimants is in effect the son of the decedent. But even in the case of father-in-law and daughter-in-law the rule as stated in Porter's Estate, 15 C. C. Rep. 607, and in Stonaker's Estate, 1 Chester Co. Rep. 446, directly applies to the facts in this case. In Smith v. Mulligan, 43 Pa. 109, the court say, "undoubtedly relationship, either by consanguinity or affinity is a fact which tends to rebut the presumption which the law raises that a promise to pay is intended, when personal services are rendered." True this case was sent back for re-trial on the error of the court in requiring a specific contract to be proven; but the decedent there was insane and incapable of making a contract. The facts were essentially different. So also Griffith's Estate, 147 Pa. 274. All the facts and circumstances here rebut the presumption of a promise to pay, keep ing in view the family relationship, therefore to sustain this claim an express contract must be shown, or such a state of facts from which an express promise to pay could be inferred. The expressions of the decedent relating to the services of claimant do not amount to a contract. There is nothing to show she expected extra compensation; much less that such expectation was brought to his notice. When he went to the home of A. J. Claney he was sick and had been for months before. His most serious illness was in the beginning of his residence with this son, who, knowing his father's age and his physical condition when he came, and the extreme probability of increasing care, made the contract for compensation which was fixed at $10 a week. This amount decedent paid regularly and promptly, and it was accepted, in the absence of a clear agreement to pay an additional amount, in full consideration of all services. The decedent's expressions were those of gratitude, and his desire that compensation should be rendered was very natural; but it is not indicative of the terms of a contract. If it was the expectation of claimant's family to receive additional compensation for filial services to this aged and infirm father, it was a first necessity to enter into a specific contract with him in his lifetime, fixing the character of the service and the amount of compensation; Ulrich v. Arnold, 120 Pa. 170. If the son or his wife were not willing to receive the father unless he paid more than the agreed price of $10, it should have been made known in a filial way; Lynn v. Lynn, 29 Pa. 369. The original contract stands in the way of extra compensation; Brose's Estate, 155 Pa. 619; if the services required more compensation than that fixed by the original $10 per week contract, the remedy was to make a new condition; Rosencrance v. Johnson, 191 Pa. 520. This decedent was in circumstances He did regularly that enabled him to pay. pay the agreed charge, beginning with August 30, 1901, when his infirm condition was thoroughly known to the claimant's family; notwithstanding this demand is now made for an additional amount, double the agreed price, and beginning with the first day of decedent's residence with his son, the then husband of the deceased claimant. the absence of an express contract prevent Not only do the family relationship and the allowance of this claim; it has absolutely no merit in view of the conveyance to the real claimants by the decedent of real estate valued above five thousand dollars for the nominal consideration of one dollar. |