Rudy v. Myton

• Decision Date: 14 February 1902
• Docket Number: 234-1900
• Citation: 19 Pa.Super. 312
• Parties: Rudy v. Myton, Appellant (No. 1)
• Court: Pennsylvania Superior Court

19 Pa.Super. 312

Rudy v. Myton, Appellant (No. 1)

No. 234-1900

Superior Court of Pennsylvania

February 14, 1902

Argued November 6, 1901 [Syllabus Matter] [Syllabus Matter] [Syllabus Matter]

Appeal by defendant, from judgment of C.P. Huntingdon Co.-1899, No 10, on verdict for plaintiff, in case of Henry Rudy, Administrator of Margaret Rudy, Deceased, v. Benner R. Myton, Thomas F. Shipton, Mary P. Shipton and Thomas F. Shipton.

Trespass to recover damages resulting from the cutting off of a supply of water. Before Bailey, P. J.

From the record it appeared that the suit was originally begun by Margaret Rudy, and that after her death Henry Rudy, her administrator, had been substituted plaintiff.

At the trial it appeared that in 1871, Margaret Rudy tapped a standpipe on land which subsequently became the property of defendants, and inserted a lead pipe by which she drew water for her own use. In 1880 the use of this water was interfered with, and in 1886 plaintiff at her own expense erected another standpipe. In 1899, the defendants cut off the water flowing to Margaret Rudy's land.

When Thomas F. Shipton was on the stand, the following offer was made:

We offer to prove by the witness that at the time that Elmer Croyle, a witness for the plaintiff, testified that he and Mr. Rudy and Mr. Myton had a conversation which he overheard, in which they entered into an agreement that they were to put down these pipes and each one bear one third of the expense and one third of the renewals from that time on, that he was not there, and that there was no such conversation as far as he was concerned; for the purpose of contradicting Elmer Croyle.

Mr. Brown: It is objected that the witness is one of the defendants in this case, the party plaintiff, Margaret Rudy, being dead, this witness is incompetent to testify in this issue as to anything occurring prior to her death.

The Court: Objection sustained. Testimony excluded. Bill of exception sealed for defendant.

When Matthew Rudy, a witness for the plaintiff, was on the stand, the following offer was made:

Mr. Waite: We propose to prove the signature of Thomas Shipton to a paper.

Mr. Waite:"

Q. Mr. Rudy, are you acquainted with the handwriting of Thomas Shipton?

A. Yes, sir.

Q. Have you seen him write frequently?

A. Yes, sir.

Q. Have you seen him figuring?

A. Yes; I have seen him figuring.

Q. I show you a paper with the name of Shipton written on it? (Paper handed witness.)

A. That is Mr. Shipton's handwriting; those are his figures.

Q. Are those his figures on the top of the paper?

A. Yes, sir.

Q. Who wrote the word 'Myton' there?

A. Mr. Shipton.

Q. Whose handwriting is on the face of this paper, if you know?

A. Well, it looks a good little bit like my father's handwriting.

Q. Whose figuring is on the lower left-hand corner of the paper on which the writing is made?

A. Which, this (indicating)?

Q. Yes?

A. That is Mr. Shipton's there.

Q. The lower left-hand corner?

A. Yes, sir."

Mr. Waite: We offer this paper in evidence, for the purpose of showing the expense incident to the erection of the new pipes testified to by the plaintiff's witnesses, in 1887, to show the division of the expense incurred, as it appears on the paper, equally between the three persons, as it appears in the figures of Thomas Shipton, one of the defendants in this case.

Mr. Woods: It is objected:

1. That there is nothing on the paper that shows for what purpose it was made.

2. The witness on the stand stated that the paper was in the handwriting of Henry Rudy and it appears to be simply a kind of account for some purpose, the paper not showing what.

3. There is no evidence offered that James Myton ever saw this paper or that it was ever presented to him.

4. That the paper is simply a declaration of Henry Rudy as to something that took place in the lifetime of James Myton.

5. That the paper in no way could affect the interest of Benner Myton, one of the defendants in this case, being the devisee of James Myton.

6. That the paper as far as James Myton is concerned or Benner R. Myton cannot be evidence in this case. They are alleging that one of these parties held the property that he owns under Mr. Frazier and Benner R. Myton holding his property under his father, whatever agreements made between them, if there were any such, were separate and distinct agreements, so far as any evidence in this case is concerned.

7. Any declarations or any conversations of Thomas Shipton with James Myton, he being dead, cannot affect the rights of Benner Myton, his devisee -- any conversations with Henry Rudy, I mean.

The Court: Objection overruled. Paper received in evidence. Bill of exceptions sealed for defendants. Of course the indorsement in the handwriting of Mr. Rudy is not evidence. It should be erased.

Paper marked " plaintiff's Exhibit I, G. E. S., May 16, 1900."

Read by Mr. Waite as follows:

December 10, 1887.

To 5 days cutting and hauling pipes

$ 6.25

To 20 pipes at 50 cts.,

10.00

To 17 pipes at 30 cts.,

6.00

To 8 days' digging and laying pipes,

10.00

To 2 days' digging,

2.50

To 1 day's digging,

1.25

To 68 rings,

8.50

To Hauling pipes logs,

10.00

To 58 meals,

9.66

3 / 58

To 19 1/3

To 35.49

35.49

To 27.90

2.75

To 7.59 Myton,

32.74 Shipton

To Myton's balance 7.59.

Matthew Rudy recalled on behalf of plaintiff.

Direct examination.

Mr. Waite:"

Q. At the top of the page on this sheet of paper I showed you is written, 'Myton's balance, $ 7.59.' Whose writing is that?

A. Thomas Shipton's."

Mr. Brown: I propose to read from the testimony of Elmer Croyle, given on the trial in the equity case, which is not yet disposed of, certain testimony that bears on the question relating to the matters that Mr. Woods offered in evidence, as tending to explain and qualify his answer in that former cross-examination.

Mr. Woods: It is objected that Elmer Croyle is a living witness and was put upon the stand and examined. His attention was called to answers that he made on the former trial of this case between the same parties, in equity, where he testified. He emphatically denied ever having made such answers. The defendant having read his answer on the former trial, as it related to what he denied on the stand to the jury, Elmer Croyle could not be called back now to corroborate his statements, and if he could not be called back to corroborate his statements, they could not offer any testimony that was taken on the former trial to corroborate anything that he denied at that time.

The Court: Objection overruled. Evidence received. Bill of exceptions sealed for defendants.

The defendants' points were as follows:

3. That if the jury should find that James Myton, Thomas Shipton and Henry Rudy had an agreement by which Henry Rudy could take any portion of the water flowing down said pipes, that it was a mere license or permission granted to Henry Rudy. Answer: The point is not affirmed as stated. If you find that Henry Rudy was acting as the agent for his wife, then the permission must be considered as granted to his wife and not to him individually.

4. That it is essential to an easement that there should be both a dominant and servient estate, and as there was no evidence of Henry Rudy being the owner of any tenement to which the land of Benner R. Myton was made servient any agreement, if the jury should find there was any with Henry Rudy was a personal license or privilege to Henry Rudy. Answer: Refused.

7. That there is no evidence produced by the plaintiff that Benner R. Myton or his predecessors in title had any agreement with Margaret Rudy giving her a right to take any portion of the water flowing down said pipes. Answer: Refused, if you believe from the evidence that Henry Rudy was acting on behalf of and as the agent of his wife, Margaret Rudy.

11. That the interest of Mary P. Shipton in the water flowing from said spring being but an easement to take one fourth thereof through pipes laid over or through lands of the said Benner R. Myton neither she nor any of the predecessors could grant the plaintiff any right or use to be exercised therein. That as to Mary P. Shipton, the use of any part of said water was a mere permission to use, revocable at pleasure, and having given notice of the revocation of her permission, Thomas F. Shipton committed no trespass when he went to the stand pipe and took only the share of the water to which she was entitled under her deed. Answer: Refused.

Verdict and judgment for plaintiff for $ 28.42. Defendant appealed.

Errors assigned were rulings on evidence, quoting the bill of exceptions. Above instructions, quoting them.

Reversed.

James S. Woods and W. H. Woods, with them T. W. Myton, for appellant. -- A party is a competent witness to testify to a transaction which a witness for the opposite party had described as occurring in the presence of the witness, the party and the decedent: Dumbach v. Bishop, 183 Pa. 602; Kauss v. Rohner, 172 Pa. 481; Brumbach v. Johnson, 187 Pa. 603; Hooven Mercantile Co. v. Evans Mining Co., 193 Pa. 37.

A mutilated piece of paper which appears to have been torn out of a book in which neither the name of the plaintiff nor defendant appears, which contains no charges against the defendant and which is unintelligible without an explanation by the plaintiff is not admissible in evidence as a book of original entries: Hough v. Doyle, 4 Rawle, 290; Carroll v. School, 2 Phila. 260; Thompson v. McKelvey, 13 S. & R. 126.

The statements by a witness at another time, though admissible to contradict him are not equally so to confirm him: Craig v. Craig, 5 Rawle, 91; Mowday v. Moore, 133 Pa. 598.

H. H. Waite, for appellee, filed no printed brief.

Before Rice, P. J., Beaver, Orlady, W. W. Porter and W....