lowed by an offer by defendants' counsel of the record of the case referred to in the above admission. It was objected to solely on the ground that it was irrelevant and immaterial. The objection was promptly and properly overruled, and the record admitted. that suit, wherein she received from them ners trading as Lewis G. Shoemaker & Co., the sum of $500 and gave to them an order court of common pleas No. 5, December term, to mark the said suit discontinued, settled, 1903, No. 719." This was immediately foland ended; the claim in that suit being based upon the same accident which is the basis of the present suit. Mr. Scott: As to the admission, I do not see how that can be offered in evidence. As to the record, I object to it, because it is absolutely immaterial and irrelevant. The Court: This is intended to lay the basis of a claim on the part of the defendants that one of two tort-feasors made a settlement, and that that inures to the benefit of the other. Mr. Bracken: Yes, sir. That he cannot make a settlement with one man and hold him responsible, and turn around and sue somebody else. (Objection overruled. Exception noted for plaintiff by direction of the court.)" The plaintiff's statement of claim in the suit of Matilda Peterson v. Lewis G. Shoemaker et al. was the same, except as to the name of the defendants, as in the present suit. Verdict for plaintiff for $3,500. Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ. From an examination of the record in that case, it clearly appears that the cause of action was the same there as here. The statement filed in that case is exactly the statement filed in this, with no other change than in the names of the defendants. The negligence which it is averred caused the injury is not only averred against L. G. Shoemaker & Co., while in this case it is averred against these defendants, but the act of negligence is the same in both statements. Since death happens but once to any individual, the inference we put it very mildly-is that these several defendants in these several suits were joint tort-feasors. Cases may arise where whether the party sued separately was a joint trespasser becomes a question to be decided only by a jury; there are oth Henry J. Scott, for appellant. F. B. Brac- ers, however, where the question is for the ken, for appellees. STEWART, J. [1] If it be a fact appearing in the case that the present action was brought against defendants for a joint trespass with another, and that that other having made compensation for the injury had been released from liability, then the case was rightly ruled in the court below, and the judgment non obstante must be sustained; for it is a settled rule that whenever satisfaction has been received from one of several joint tort-feasors all are thereby discharged. The contention of the appellee here is that this rule, which is admitted, applies only as between established joint tortfeasors, so that when one is separately sued for the trespass alleged-in the present case it was negligence resulting in the death of plaintiff's husband-he can avail himself of the rule only as he shows that the party who was released was in fact a joint trespasser with himself. For the sake of the argument, we may concede that this is so. The position taken is not without authorities supporting it, though authorities to the contrary are even more numerous. The case in hand calls for no opinion as to which rest on the better reason, for if any such burden rested on these defendants it was met and discharged. [2] There appears on the record of this case the following admission by the plaintiff's counsel: "I will admit that the plaintiff in this case, in addition to the present suit, brought a suit against Shoemaker & Co., and that Mr. Wylie, representing Shoemaker & Co., in that case, paid her $500 for an order to discontinue, settle, and end the suit of Matilda Peterson v. Lewis G. Shoe court. If the settlement and release relied on follow a suit at law, either before or after final adjudication, it would be for the court to decide, from an inspection of the record, whether the cause of action was the same in both cases, and determine whether defendant was sued as a joint trespasser or otherwise, unless there were independent facts in dispute bearing on the question. It could only become a question for the jury upon the defendant showing something to the contrary. Here the record of the case against Shoemaker & Co., considered in connection with the admission entered upon the record of the case, established a prima facie case for the defendants beyond all question. The burden then shifted to the plaintiff, and it was for her to show, if she could, that, notwithstanding this admission and record, defendants' negligence alone occasioned the injury. That the evidence on the main question of defendants' negligence did not disclose concurrent negligence on the part of another is wholly aside from this collateral inquiry. The main issue was upon defendants' plea of not guilty. The determination of that issue was not dependent on whether the defendant alone was guilty of the negligence, or whether that of another contributed. Nor is there anything to be derived from the fact that defendants were sued in a separate action. A party injured, though he may obtain but one satisfaction, may maintain as many actions as there are joint tort-feasors. Even admitting plaintiff's theory as to the law, that defendants were bound to show joint negligence on the part of L. G. Shoemaker & Co., this requirement was fully met by a nothing to rebut it, binding instructions to find for the defendants would have been entirely proper. These not having been given, and the jury having found for the plaintiff, there was no error in entering judgment non obstante for the reasons above stated. Judgment affirmed. (230 Pa. 597) ROCAP v. BELL TELEPHONE CO. OF PHILADELPHIA. (Supreme Court of Pennsylvania. March 20, 1911.) 1. ELECTRICITY (§ 19*)-INJURIES FROM USING TELEPHONE-ACTIONS-SUFFICIENCY OF EV IDENCE. In an action against a telephone company for personal injuries from an electric current while using a telephone, evidence held insufficient to go to the jury. [Ed. Note.-For other cases, see Electricity, Dec. Dig. § 19.*] 2. ELECTRICITY (§ 19*)-EVIDENCE-RES IPSA LOQUITUR - ELECTRIC SHOCK FROM USING TELEPHONE. Where one was injured by an electric cur rent while using a telephone during a violent thunderstorm, and it appeared that the tele phone company maintained on the telephone the best-known device in general use for protection against abnormal or atmospherical electricity and was not otherwise negligent, the rule res ipsa loquitur does not apply. [Ed. Note. For other cases, see Electricity, Cent. Dig. § 11; Dec. Dig. § 19.*] 3. ELECTRICITY (§ 16*)-OPERATION OF TELEPHONE-NEGLIGENCE. That the telephone company did not place a warning on the telephone against its use during electrical storms was not evidence of negligence in the operation of the telephone, in the absence of a showing that such warning was ever placed by the company or by any other telephone company on telephone instruments. [Ed. Note.-For other cases, see Electricity, Cent. Dig. §9; Dec. Dig. § 16.*] June 21, 1906, went to the Philadelphia Country Club to report a polo match and remained to dinner that evening. About half past 8 o'clock he left the dining room and went to the telephone booth in the building to communicate with his paper. The telephone was installed at the clubhouse by the defendant company. As the plaintiff took the receiver from the hook and asked for the desired number, he received a shock and was severely injured. Alleging that his injuries were caused by the defendant's negligence, he brought this action to recover damages. The trial of the cause resulted in a verdict and judgment for the plaintiff. The defendant has appealed, and assigns for error the refusal of its motion for judgment non obstante veredicto. It is averred in the statement, as the cause of action, that it was the duty of the defendant as the owner and operator of the telephone pay station at the Country Club to have the same properly equipped and protected so as to prevent injury to persons using it, and that "the defendant neglected to properly equip and operate its pay station at the said Philadelphia Country Club, and so negligently maintained and operated the same that on the 21st day of June, 1906, the plaintiff, while using the telephone at the public pay station above referred to, received a severe electrical shock rendering him unconscious," etc. *** There were two witnesses called by the plaintiff, himself and Dr. Francis D. Pat terson. In describing the accident the plaintiff testified that he went to the telephone booth, took the receiver off the hook, and asked for his number, "and instantly there was a heavy shock. I saw a flash of electricity and bolt of fire in front of my face, and the next thing I remembered is the next Appeal from Court of Common Pleas, Phil- afternoon my daughter sitting by my bedadelphia County. Action by William H. Rocap against the Bell Telephone Company of Philadelphia. Judgment for plaintiff, and defendant appeals. Reversed, and judgment entered for defendant non obstante veredicto. Trespass to recover damages for personal injuries. The facts are stated in the opinion of the Supreme Court. At the trial the jury returned a verdict for $5,000, on which judgment was entered for $2,500, all above that sum having been remitted. Defendant appealed. Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, STEWART, and MOSCHZISKER, JJ. Frank P. Prichard and James Wilson Bayard, for appellant. Francis Shunk Brown, for appellee. MESTREZAT, J. The plaintiff is a newspaper reporter, and on the afternoon of * * * side in the Howard Hospital. That was the first time I had regained my con sciousness." As to the condition of the weather on the day of the accident, the witness says it looked threatening that afternoon, and there was rumbling of thunder all the latter part of the afternoon, that he was inside the clubhouse, "was not paying much attention to the surrounding elements," and did not know until the next day that a thunderstorm was going on at the time he went to the telephone. Dr. Patterson testified that he was at the clubhouse that afternoon, and that it started to rain very hard early in the afternoon, and there were distant flashes of lightning and thunder between half past 5 and 6 o'clock. He says that later he was sitting at dinner on a covered veranda when a heavy storm came up. "I judge it was about quarter after or 20 minutes after 8. Suddenly there was a frightful, blinding flash of lightningso much so that the people sitting at the •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes * * * * * * * * same table with me all jumped up under the impression that the clubhouse had been struck, and, just as we started to go indoors, somebody came running out and said a man had been struck by lightning, and I went in right away and found Mr. Rocap lying on the floor, and I then examined him and found that his condition was apparently very serious. He was exactly like a man who had suffered concussion of the brain. He was lying some 20 or 25 feet from the telephone booth just where he had fallen. There was a blinding flash of light, and the people at the tables, everybody on this veranda, 40 or 50 people, jumped up and thought the clubhouse was struck. Q. And that was followed by a clap of thunder? A. Followed instantly-there didn't seem to be an appreciable space between the light and the thunder. Q. Were these such marks as would indicate that any of the current passed through him? A. The one on the front of the forehead was undoubtedly a pruise where he fell. What the one back of the ear was I am not prepared to state. It might have been an electric burn. It was due to a suffusion of blood. It might have come from a very severe bruise when, he fell; I am not prepared to say that." The testimony of the plaintiff, it will be observed, was confined to showing the accident, the condition of the weather at the time he received his injuries, and, in rebuttal, that there was no sign on the telephone warning persons against using it during [1] This, like any other case, must be considered and decided on the facts admitted or proved in the trial court. We have referred to the material evidence produced by both parties. The credibility of the witnesses was not impugned, and the evidence was entirely uncontroverted. The facts, therefore, are not in dispute. We are all of opinion that the learned trial judge erred in not giving binding instructions in favor of the defendant, and subsequently in not entering judgment for the defendant notwithstanding the verdict. [2] The basis of the plaintiff's action is negligence, and, as disclosed by the statement, it consists in the failure of the defendant company to properly equip, operate, maintain, and protect its pay station at the clubhouse resulting in the plaintiffs injuries. It was incumbent on the plaintiff on the trial of the cause to establish the negligence averred in the statement before he was entitled to recover. His counsel now contend, in support of the judgment entered in his favor by the court below, that the maxim res ipsa loquitur applies; that the plaintiff made out a prima facie case, and the defendant failed to offer any evidence which shifted the burden of proof; and that the defendant company's failure to place a warning on the telephone against its use during electrical storms was evidence tending to establish the company's negligence. The maxim res ipsa loquitur does not apply to the facts of the case as disclosed by thunderstorms. The defendant company the plaintiff's evidence. We are not requirclaimed that it had placed an instrument ored to determine whether the maxim would cause, if the telephone had any connection | operated, and protected. This fully met the defendant company neglected no duty which | affidavit of defense. The material averthe law imposed, and hence it is not re-ments of the statement of claim and affidasponsible for the injury which befell the vit of defense are set forth in the opinion of plaintiff. device on the telephone at the clubhouse to prevent the discharge of electric currents during an electric storm into the telephone, and produced several witnesses having experience and technical knowledge who de scribed the device and testified that it was a standard protection device, and was at the time of the accident the best in general use and the most efficient known to the scientific world for protecting a telephone from outside or abnormal electrical disturbances, such as are due to lightning or to the tele phone wire coming in contact with high voltage circuits. The witnesses, however, concurred in saying that there was no known device which would absolutely prevent lightning discharges into a telephone. It also appeared by uncontradicted evidence that the protection device on the telephone at the clubhouse was in proper working condition and had actually operated at the time of the accident. The official records of the weather bureau at Philadelphia and the testimony of the observer in charge of the bureau show that there was a thunderstorm at Philadelphia during the evening of June 21, 1906, from 8:10 to 10:15 o'clock; and other testimony disclosed the fact that the storm was very severe and had put many telephones out of have applied had the plaintiff's evidence concluded by showing simply the accident, that he had approached the telephone, took the receiver, and instantly received the electric shock which caused his injuries. It might be that as the telephone line and the electric current used in operating it were in the exclusive control and management of the defendant company, and the result was so unusual and out of the ordinary in operating telephones, that a fair inference might be drawn that the shock communicated to the plaintiff was caused by the defendant's negligent operation or management of its line. It possibly could have been inferred under these circumstances, though we do not de cide, that the telephonic wire had come in contact with a highly charged wire by reason of the negligent construction or maintenance of the former wire and thereby produced the electrical discharge that shocked the plaintiff. The proof of the accident and the consequent injury without more might have made out a prima facie case and sent it to a jury. But the plaintiff went beyond the mere proof of the accident, and showed the cause of it. His evidence left no reasonable ground for an inference that the accident resulted from the defendant's negligence or improper operation or management with his injuries, and that was the act of God. The testimony of Dr. Patterson, the plaintiff's witness, leaves no rational doubt that the shock received by the plaintiff, if communicated by the telephone, was produced by atmospheric electricity and not by an electric current within the control of man. Such being the only reasonable inference to be drawn from the evidence, and that, there fore, there was another cause than the defendant's negligence which, at least, may have produced the plaintiff's injuries, the rule res ipsa loquitur cannot be applied. East End Oil Co. v. Pennsylvania Torpedo Co., 190 Pa. 350, 42 Atl. 707; Allen v. Kingston Coal Co., 212 Pa. 54, 61 Atl. 572. It appearing by the plaintiff's testimony that his injuries resulted from the act of God, the maxim has no application, and a presumption of negligence does not arise. Actus Dei nemini facit injuriam. The burden was therefore on the plaintiff to produce affirmative proof of negligence which concurred with the act and effectively contributed to the accident. To create a liability on the part of the defendant, it must have required the combined effect of the act of God and the concurring negligence to produce the injury. Baltimore & Ohio Railroad Co. v. School District, 96 Pa. 65, 42 Am. Rep. 529. And, if the act was so overwhelming as of its own force to produce the injury independently of the negligence shown, the defendant cannot be held responsible. Helbling v: Alleghený Cemetery Co., 201 Pa. 171, 50 Atl. 970. We have discussed the evidence introduced by the plaintiff and its effect on the liability of the defendant. There was no attempt by the plaintiff to show that there was any defect whatever in the telephone, and he relied solely on the proof of the accident and his injuries to show that the telephone was not properly constructed, equip ped, or protected. He therefore failed to meet the burden imposed upon him by showing that any negligent act of omission or commission on the part of the defendant company produced or contributed in any way to his injuries. [3] On the other hand, the defendant proved by witnesses, experienced and skilled in the use of electricity and electrical apparatus, that the telephone at the clubhouse was not defective, but was in good condition, and that the best known device in general use for protecting persons against injury by abnormal or atmospheric electricity was placed on this telephone. This evidence was not contradicted or impugned in any way. The plaintiff made no attempt to meet or discredit it. It therefore appears not only that the plaintiff wholly failed to support the allegations of negligence contained in his statement, but that the defendant company clearly established that at the time of the ac duty imposed by law on the defendant in the operation of its telephone line. It is contended by the plaintiff that the failure of the defendant company to place a warning on the telephone against its use during electrical storms was evidence to submit to the jury of the defendant's negligence in the management and operation of the telephone. We do not regard this contention as tenable. It overlooks the wellsettled and oft-repeated rule in this state that the test of negligence in methods, machinery, and appliances is the ordinary usage of the business. One cannot be convicted of negligence if he employ in his business the methods and appliances in general use by those engaged in a like business; on the other hand, if he fail to use such methods and appliances and an injury results therefrom, he may be required to convince a jury that his methods and appliances were of equal or superior merit to those in general use. If a notice or warning not to use the telephone during a thunderstorm can be regarded as an appliance or equipment, it does not appear, and the plaintiff does not attempt to show, that such a notice has ever been placed by the defendant or any other company on its telephones. It may be common knowledge, possessed alike by the plaintiff and the public, that it is dangerous to use or be near a telephone or any other good conductor of electricity during a thunderstorm; but it is equally well known, and the contrary is not disclosed by the evidence in this case, that telephone companies do not ordinarily place signs on their telephones containing such information. If, however, a danger warning had been placed on this telephone, it would not have afforded the plaintiff any protection. He testified that he was inside the clubhouse during the evening, that the weather was not of any concern to him, and that he did not know a thunderstorm was in progress at the time of the accident. It is manifest, therefore, that such a notice would not have deterred the plaintiff from using the telephone, and thereby protected him against the electric shock which he received. The doctrine of the electric light and power cases cited by the plaintiff is not applicable to the facts of the present case. In those cases it appeared the injury was caused by an electric current which was or should have been under the control of the defendant, and the exercise of proper care by him would have prevented the accident. Here, the undisputed testimony shows that the plaintiff was injured by a current of atmospheric electricity or lightning against which there is no absolute protection, but against which the defendant company tried to protect the plaintiff and others using the telephone by placing on it the best and most efficient protection device then known. The distinction between the two classes of cases is, we think, The facts of this case are not in dispute, and they fail to show any negligence on the part of the defendant company which caused | the plaintiff's injuries. The learned trial judge should therefore have directed a verdict for the defendant, or subsequently entered judgment for the defendant notwithstanding the verdict. The assignment of error is sustained, and the judgment is reversed, and judgment is now entered for the defendant non obstante veredicto. (230 Pa. 609) SANDERS v. BROCK. the Supreme Court. Argued before FELL, C. J., and MESTREZAT, POTTER, ELKIN, and MOSCHZISKER, JJ. Horace Stern and Morris Wolf, for appellant. H. J. Rebman and James Gay Gordon, for appellee. MESTREZAT, J. This is a rule for judgment for want of a sufficient affidavit of defense. The action was assumpsit to re cover back $2,000 paid by plaintiff to the defendant as part purchase money on a sale of certain real estate sold by the defendant to the plaintiff, and which sale the latter declined to complete by refusing to (Supreme Court of Pennsylvania. March 20, take the property and pay the balance of 1911.) 1. VENDOR AND PURCHASER (§ 185*)-BREACH OF CONTRACT BY PURCHASER - RIGHT OF VENDOR. Where a purchaser of realty declines to comply with the agreement by paying the price, the vendor may, in affirmance of the contract, sue to compel payment of the price, or may treat the contract as rescinded, and sue for its breach, but he need not pursue either course, his only duty being to be ready and willing at the stipulated time to perform his part of the contract, and, while he occupies such a position, he is not in default. [Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. §§ 369-372; Dec. Dig. § 185.*] [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 981-983; Dec. Dig. § 335.*] 3. VENDOR AND PURCHASER (§ 185*) -DEFAULT BY PURCHASER-RIGHTS OF VENDOR. Where a vendor, upon default of the purchaser, does not rescind the contract, but tenders a deed and insists upon its acceptance by the purchaser, which the purchaser positively and at all times declines, the vendor is not required to hold the property indefinitely for the purchaser. [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 369-372; Dec. Dig. § 185.*] Appeal from Court of Common Pleas, Philadelphia County. Action by Albert J. Sanders against Sel the purchase money. By an agreement in writing dated January 14, 1910, the defendant agreed to sell and convey to the plaintiff the premises at 1507 Walnut street, Philadelphia, for the consideration of $104,000, of which $1,000 were to be paid at the signing of the agreement, and the balance at the time of settlement on or before February 1, 1910. The premises were to be conveyed clear of all incumbrances and easements, and the title was to be good and marketable and subject to no restrictions. It was agreed that, if the purchaser made an additional payment of $1,000 on the purchase money, the time of settlement should be extended for a further period of 30 days from February 1st. The agreement was executed by the parties as agents for undisclosed principals. The purchaser paid $1,000 at the signing of the agreement, and the additional sum of $1,000 on or about February 1st when the time of settlement was extended to March 2, 1910. The statement, after setting forth the above facts, avers that on March 2, 1910, the plaintiff was ready and willing and offered to settle for the property according to the terms of the agreement, but the defendant was unable to convey the premises clear of incumbrances and easements and with no restrictions; that on said date the fair market value of the property was at least $104,000, the price agreed to be paid by the plaintiff for it; that subsequently to the said date and prior to the bringing of this suit the defendant sold the property for a price largely in excess of the sum agreed to be paid for it by the plaintiff, although don J. M. Brock. From an order discharg- the property was of no greater value at the ing rule for judgment for want of a sufficient affidavit of defense, plaintiff appeals. Affirmed. Assumpsit for money had and received. Rule for judgment for want of a sufficient time of the sale than on March 2, 1910; and that by reason of the premises the defendant was not injured by plaintiff's alleged breach of contract and is therefore not entitled to retain the $2,000 which was paid |