to pay wife specified amount per month, while persuasive, was not conclusive evidence of desertion within the meaning of the Intestate Act of June 7, 1917 (P. L. 429, § 5; Pa. St. 1920, § 8354), providing that no husband deserting wife may claim any interest in her estate after her decease. 4. Descent and distribution presumed to be willful. establish desertion, and awarded an inquest, from which decree this appeal was taken. The Intestate Act of June 7, 1917 (P. E. 429, § 5; Pa. St. 1920, § 8354), provides that "No husband who shall have, for one year or 63-Desertion fully neglected or refused to provide for his upwards previous to the death of his wife, willwife, or shall have for that period or upwards willfully and maliciously deserted her, shall have the right to claim any title or interest in her real or personal estate after her decease." Desertion of wife without cause or consent is presumed to be willful and malicious within the meaning of the Intestate Act of June 7, 1917 (P. L. 429, § 5; Pa. St. 1920, § 8354), providing that no husband who shall willfully or maliciously desert his wife shall have right to claim interest in her estate after her desertion. 5. Witnesses 136-Husband could not tes- It is not denied that the husband had for wife's death lived apart from her and the a period of over four years preceding his other members of his family. His withdrawal from the family home occurred in April, 1915, at which time a quarrel arose between husband and wife concerning the employment of a nurse for their invalid son, and resulted in Mrs. Phillips having her husband arrested on a charge of disorderly conduct; and at her request he was taken to the police station, she agreeing to appear against him later. Since that time appellee has resided in the same locality in which his wife lived, making frequent visits to his home, taking meals there, helping his wife about the house, tending the fires, purchasing food at times, and paying for washing and ironing and other incidental household expenses. On February 14, 1916, at the instance of Mrs. Phillips, proceedings for nonsupport and desertion were instituted in the court of quarter sessions, which resulted in an order on her husband requiring him to pay $35 a Appeal from Orphans' Court, Lackawanna month. These monthly payments were kept County; M. F. Sands, Judge. In the matter of the estate of Esther Phillips. From a decree in favor of Joseph P. Phillips, applying for a partition, Geraldine Phillips appeals. Reversed and remitted. Argued before FRAZER, WALLING, SIMPSON, KEPHART, and SADLER, JJ. Walter W. Harris, of Scranton, for appellant. up until the time of her death and, notwithvisits to the house occupied by his wife constanding the order of the court, appellee's tinued as before. The evidence shows an attempt by members of the family to effect a reconciliation between the two; and while the husband expressed himself as willing to return home and do anything to satisfy his wife, the latter answered that she would consider the matter. [1-4] On the whole the evidence supports John R. Edwards, of Scranton, for appel- the conclusion of the court below that, unlee. der the particular circumstances indicated by the evidence, the husband was living FRAZER, J. Esther Phillips died July 13, apart from his wife with her tacit assent, 1919, leaving a will in which she devised the and that he was not guilty of willfully negbulk of her property to her daughter Ger- lecting to provide for her within the meanaldine, the appellant. Joseph P. Phillips, ing of the act of 1917. Mere separation by surviving husband of deceased, elected to mutual agreement or consent is not desertake against her will, and asked for a petion (Ingersoll v. Ingersoll, 49 Pa. 251, 88 tition of the realty, to which appellant an-Am. Dec. 500); and although the record of swered, denying his right to a division of the quarter sessions was persuasive evidence the property and alleging he had forfeited to show desertion, it was not conclusive of all interest in his wife's estate by reason of the offense (Hahn v. Bealor, 132 Pa. 242, 19 having deserted her for a period of more Atl. 74). While the fact of desertion withthan one year previous to her death. The out cause or consent would be presumed to court below held the evidence insufficient to be willful and malicious (Middleton v. Mid (114 A.) dleton, 187 Pa. 612, 41 Atl. 291), the evidence [ association, may be brought against some of in the case before us is sufficient to justify the members as representing themselves and a finding that the separation was with the all others having the same interest, and after consent of the wife, practically at her in- decree the chancellor may be moved to compel stance, and, consequently, not willful and defendants to see that the treasury of the association pays the claim. malicious. [5] The court below erred, however, in permitting the husband to testify to matters occurring between him and his wife, and not in the presence of the daughter, who had been called to testify. Under section 5, cl. (e), of Act May 23, 1887 (P. L. 158; Pa. St. 1920, § 21853), the husband was incompetent to testify to any matter occurring between him and his deceased wife, and did not come within the exception applying to controversies between parties claiming by devolution on the death of the owner of property, as the husband claims by devolution (Cooke v. Doron, 215 Pa. 393, 64 Atl. 595, 7 L. R. A. (N. S.) 659, 7 Ann. Cas. 502), while the daughter claims under the will, which is by purchase (Munson v. Crookston, 219 Pa. 419, 68 Atl. 962). The daughter was called as a witness, however, and this made the husband competent to testify to matters occurring in her presence as provided in Act of June 11, 1891 (P. L. 287; Pa. St. 1920, §§ 21857, 21858). This did not render him competent for all purposes, however, but only to such matters as were covered by the testimony of the surviving witness. Krumrine v. Grenoble, 165 Pa. 98, 30 Atl. 824; Kauss v. Rohner, 172 Pa. 481, 33 Atl. 1016, 51 Am. St. Rep. 762. Notwithstanding this, the court below permitted the husband to testify concerning matters occurring between himself and his wife, and not in the presence of the daughter, or within the scope of her testimony. Owing to the admission of this testimony we find it necessary to sustain the first assignment of error. Appeal from Court of Common Pleas, Lancaster County; Charles I. Landis, Judge. Action of assumpsit by Annie Katherine Oster against the Brotherhood of Locomotive Firemen and Enginemen and others. Judgment for defendants, and plaintiff appeals. Affirmed, without prejudice. SCHAFFER, J. Plaintiff brought an action of assumpsit against "the Brotherhood of Locomotive Firemen and Enginemen, W. J. Carter, president; A. H. Hawley, general secretary and treasurer, or whoever may represent the defendant," and filed a statement of claim, in which it is averred "the defendant is a fraternal and beneficial association organized for the benefit of the members and their wives, widows, children, or families," that plaintiff is the widow of Andrew A. OSter, who was a member of the brotherhood, and that she is entitled to the insurance or benefits upon his life. Claimant attached to her statement a copy of the beneficiary certificate issued by the brotherhood, which showed that it was payable not to her, but to Frances Oster, named therein as wife. demurrer was filed to the statement, in accordance with the Practice Act of May 14, The decree of the court below is reversed, 1915 (P. L. 483; Pa. St. 1920, §§ 17181–17204), and the record remitted, for further proceed-in which it was set forth that the action canings in accordance with this opinion. Costs to abide final decision. (271 Pa. 419) OSTER v. BROTHERHOOD OF LOCOMO- (Supreme Court of Pennsylvania. July 1, 1. Associations 20 (2)-Action will not lie against unincorporated beneficial association. An action of assumpsit will not lie against an unincorporated beneficial association, there being no such legal entity. 2. Associations 20(2)-Suit in equity may be brought against members of beneficial association to recover on life insurance certificate. A suit in equity to recover on a life insurance certificate issued by a fraternal beneficial An affidavit of defense in the nature of a not be maintained, as the defendant is sued as an unincorporated beneficial association in an action of assumpsit, and that plaintiff's remedy is not at law but by bill in equity. The court sustained the demurrer, entered judgment for defendant, and plaintiff has appealed. [1, 2] Affirming the Superior Court in Maisch v. Order of Americus, 223 Pa. 199, 72 Atl. 528, we said, "There is no such entity known to the law as an unincorporated association," and held that an action of assumpsit would not lie against such a body. We took occasion, however, to point out that a plain remedy remains in equity, where suit may be brought against some of the members as representing themselves and all others who have the same interest, and in Wolfe v. Limestone Council, 233 Pa. 357, 82 Atl. 499, we reiterated these principles, and called attention to the fact that in the equity pro For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ceeding, after decree, the chancellor can be moved to compel the defendants to see that the treasury of the association pays the claim. Plaintiff has pursued the wrong remedy; if she wishes to test her claim, she should go into equity. The learned court below properly sustained the demurrer, and its judgment is affirmed, without prejudice. (271 Pa. 19) NEW STREET BRIDGE CO. v. PUBLIC 1. Corporations 3822, New, vol. 16 Key- and wires over the bridge for a compensation of so much for each passenger transported by the transit company, which charge was also added by the transit company to its fare, but there was no exclusive right to the use of any portion of the bridge, except for the time it the right of any other vehicle crossing the was occupied by a car, which was similar to bridge, the Public Service Commission can regulate the charge for the transportation of such passengers, the same as it can regulate other charges by the bridge company. 6. Bridges 33-Public Service Commission can control service charge fixed by contract between bridge company and transit company. A service charge, fixed by a contract between a transit company and a bridge company, over whose bridge the transit company operated its cars, is subject to control by the Public Service Commission under the police power to secure reasonableness of rates or prevent discrimination. The Public Service Act (Pa. St. 1920, §§ 18057-18214) clearly recognizes that corporations chartered to perform services for the pub-7. lic may perform their charter obligations themselves, or may by lease or otherwise secure the performance of such obligations by other corporations. Public service commissions 7-Can regulate rates fixed by contract only in interest of public, not of contracting consumer. The power of the Public Service Commission to regulate rates, notwithstanding a contract between the public service corporation and a consumer, extends only to regulation of such rates in the public interest to secure reasonable charges and prevent discrimination, and does not permit such regulation to reduce contract charges solely for the benefit of the contracting consumer. 8. Bridges 33-Reduction of rate charged to transit company by bridge company held not justified by findings. Under Public Service Act, art. 1 (Pa. St. 1920, 18057), defining the various companies subject to the commission's control, article 2 (sections 18058-18082), prescribing the duties to be performed by a lessor or owning company which does not operate its properties, and article 3 (sections 18083-18104), prescribing the powers and limitations of powers of lessee and operating company, which can be enforced by the commission under the powers given it by article 5 (sections 18125-18161), the commission has no power to subject a lessor or owning company to the duties or obli-pany for each passenger transported across the gations of an operating company. 3. Public service commissions 7- Cannot reduce rental to be paid by lessee to lessor. Where the owner of property devoted to public service has leased it in whole or in part to an operating company for a specified compensation, the Public Service Commission can only determine the reasonableness of the rates charged to the public for the service, and cannot reduce the compensation paid by the lessee for the use of the property, in which the public has no interest. 4. Public service commissions 6-Every point of contact between corporation and public is subject to regulation. Every point of contact between the public as such and a public service corporation, which has a close relation to duties and liability under the Public Service Act, is subject to regulation by the commission. 5. Bridges 33-Public Service Commission can regulate charge of bridge company for passengers transported by a transit company. Where a bridge company had leased to a transit company the right of way for its tracks The commission's finding that a bridge company was earning more than a reasonable dividend does not justify its order reducing the rate charged by bridge company to transit com bridge, where such rate produced only half the 7-Can fix While the Public Service Commission can fix rates in certain cases, without making a valcannot establish such rates, unless it does so uation of the property devoted to public use, it on some reasonable and scientific basis, which determines the reasonableness of the rate as fixed. Appeal from Superior Court. Proceeding before the Public Service Commission of the Commonwealth of Pennsylvania between the Lehigh Valley Transit Company, the New Street Bridge Company, and others for reduction of rates. The order of the Commission requiring a reduction of (114 A.) the rates was affirmed by the Superior Court | sion's order an appeal was allowed to this on appeal by the Bridge Company, and the Bridge Company appeals to the Supreme Court. Order of the Commission and that of Superior Court reversed, and case remitted to the Commission, with directions. Argued before MOSCHZISKER, C. J., and lant. Reuben J. Butz, of Allentown, for appellees. KEPHART, J. The New Street Bridge Company, appellant, hereinafter called the bridge company, was incorporated by act of May 3, 1864. P. L. 687. In 1867 it built a bridge from New street, in the borough of Bethlehem, across the Lehigh river and the Lehigh Coal Navigation Company canal, to New street, in South Bethlehem. As originally constructed, the bridge cost $63,150. It is 1,475 feet long, 30 feet wide, including a roadway of 18 feet and two foot passages of 6 feet each, and is supported by two abutments and eight piers. The bridge, since then, has been practically rebuilt, and is to-day a steel and concrete structure. In 1892 the bridge company made a written lease with the Allentown & Bethlehem Rapid Transit Company for the use of a part of the bridge. In 1910 the Lehigh Valley Transit Company, hereinafter called the transit company, intervening appellee, became the successor of the several street railway companies, lessees of the bridge company. Its lease was for a period of 22 years, and granted the sole and exclusive right to cross the bridge with street cars. The amount of annual rental was fixed by the number of cars and passengers moved over the bridge; for each passenger one-half of a cent was to be paid, and for each car 10 cents, with the minimum rental of $750 per year. The transit company charged a rate to each passenger using its cars over the bridge, an additional fare of one-half cent. This was covered by a supplemental ticket sold in connection with 50 and 60 strip and communtation tickets to Allentown and Hellertown. The borough of Bethlehem, now city of Bethlehem, filed a complaint against the transit company, charging excessive rates The to the citizens in using this bridge. Bethlehem Steel Company filed a like complaint. The transit company filed a complaint against the bridge company, averring its rate of one-half cent was unjust and unreasonable. The bridge company demurred to the complaint for the reasons hereinafter stated; the commission overruling the demurrer. An answer was filed, hearings had, and the commission ordered the rate reduced from one-half cent to one-third cent per person. From this order an appeal was taken to the Superior Court, and upon its affirmance of the commis court. The appeals of the Bethlehem Company and the city of Bethlehem against the transit company have been postponed, awaiting the determination of the order now be fore us. The jurisdiction of the commission to determine the matter complained of is challenged, for the reason that the bridge company is not a public service company, doing business in the particular matter under inquiry, within the meaning of the act, such as would make it subject to regulatory control. The position assumed comes to this: In the execution of the lease and subsequent performance thereunder, the bridge company was not functioning under its charter as an operating company, but had divested itself, through the lease, for a given term of years, of property and franchises, or the right or power to render service to the public. It had granted to the transit company the right to occupy, with its rails and wires, a portion of the bridge as a right of way, and, during certain scheduled periods of each day, yielded the exclusive occupancy of that part of its fixed and immovable property, without any control on the part of the bridge company as to the manner or means of operation. For this sale and divestiture, they received compensation in the nature of a rental, fixed by car and passenger movement. This contract, they urge, was in the nature of a private contract, relating to a private undertaking, as distinguished from a contract relating to a public duty affecting that part of the public having a right to demand performance of charter obligations; there fore the investigation undertaken by the commission was without authority of law, not being within the Public Service Act (Pa. St. 1920, §§ 18057-18214) as a rate, charge, or compensation. Appellant presents, among other cases, as closely analogous, the commission's ruling in underlying company cases from Pittsburgh. These lessors were made respondents, because of rentals and invested capital, in a complaint filed by the city against the operating company. The commission denied their right to so join the lessors because the contracts were private matters. City of Pittsburgh v. Railway Co., 8 P. C. R. 441. For a proper determination of these questions it will be necessary to consider the general structure of the act as it relates to both companies, the jurisdiction of the commission as it attaches to certain acts done by these companies, and the joint exercise of charter functions which, by their nature, are common to both. Article 1 of the Public Service Act (section 18057) defines the various companies subject to the commission's control; the extent of authority may be found in other parts of the The article also defines properties act. necessarily a part of the life of certain public service companies. These must be considered in connection with the particular subject under inquiry, as they are, by the act and in practice, set into appropriate spheres of corporate activity. But it is not intended each corporations, named in article 1 as a public service company, is affected with these attributes. They become so when, in "doing business" under charter privileges, they meet what is comprehended therein. 18077-the duty to file contracts; make reports when demanded; furnish maps, profiles, records, etc., for the inspection of the commission; account for proceeds of securities sold; permit its physical property to be crossed by another railroad as ordered; and abide by grade crossing regulations as directed under the act. As lessor or owning company, it has certain powers and limitations of powers, found in article 3, §§ 2, 3, 4, 5, 6, and 11 (sections 18088-18097, 18103). These in[1] Limiting our discussion to the present clude the right to own property, receive rentinquiry, the Public Service Act, taken in its als, pay dividends, acquire additional franentirety, clearly recognizes corporations which chises, aid in financing new companies, build perform charter obligations in and of them- crossings, issue bonds, pave streets, and possi selves. Such classes comprise possibly the bly others. It may be noted in the duties, largest part of the utilities in the common- liabilities, powers, and limitations of powers, wealth. It also considers corporations which there is no direct relation to an engagement have parted with franchises and property by in service to or for the public, except as to lease or otherwise, retaining merely a cor- grade crossings. They relate specifically to cirporate shell, with given powers and privileges cumstances in connection with corporate life, to be applied as occasion demands. These in which the public at large is only indirectly may be called lessor or owning companies. concerned. The commission may compel obediThe act also assumes a defined control of ence to these duties when occasion arises, or the lessee or substitute; that is, the com- they may be inquired into by complaint, if acts pany receiving, under authority of law, by are done contrary to law or the order of the lease or otherwise, the lessor's franchises commission, as may be noted in article 5, and property, undertaking, by such lease and particularly sections 12, 14, 18, 19, 21, and 22 its own charter engagement, all the duties (sections 18136-18142, 18145, 18149, 18150, and obligations imposed on the lessor of per-18153, 18154). But such skeleton concerns are forming for the lessor its charter responsibility to the state. Such lessee companies may be called operating companies. There may be degrees of such léasing; we have been speaking of absolute withdrawal from all owning and operating activities or control. There are situations where the company not only owns, but operates, a part of the prop-not be applied to such passive bodies, having erty devoted to public use; the remainder being leased to a different concern for operation. Many difficult questions may be presented, bearing on these latter conditions; they are here mentioned as an aid in determining the matter before us. Where the lease is an absolute one of a given part of the company's holdings, the question is not difficult; where there is interchange of facilitles or property mixed with operation in both concerns, it becomes more difficult to determine rights with respect to the public. Because of the complex question, and its reIation to the various phases discussed, in addition to that heretofore mentioned, we shall review the act as it relates to the different classes of corporations subject to regulatory control, and the applicability of relevant provisions to such concerns, eliminating any specific reference to the first class, above mentioned, with this observation: What may be said of the lessor and lessee, applies to such companies. A lessor or owning company-in the instant case a bridge corporation designated as a public service company by the act-has certain duties and liabilities. These may be found in article 2, § 1, (g), (h), (k), (1), and (t), none the less public service companies, charged with these duties, liabilities, and powers, without the right or capacity to function for all the purposes of their original incorporation. Therefore the terms (article 1) "common carrier," "conveyance of passengers or propcrty," "service," "facility," and the like, can no active duties to perform as they relate to the public, or in which the public has any direct interest; they are merely dry title holders in the chain that goes to make up the entire title as it is ultimately found in the operating company, which uses and operates them for the public convenience. A lessee operating company receives and owns for a given time all franchises and property of every kind and character of the it has, in addition to lessor company; those already mentioned, certain duties and liabilities (article 2, section 1) different from those of the lessor company. Lessees must furnish adequate service to the public at just and reasonable rates or compensation; make repairs, alterations, and improvements in the service and facilities for the accommodation of the patrons and the public; file tariffs and schedules showing charges, rates, and compensation, which must be posted in their places of business, depots, stations, bridges, etc.; make joint rates, and, except as mentioned in the act make no changes in a tariff or schedule. Not any of the duties just mentioned are obligatory on a lessor company; it has sold its power and right to do these things, and can regain these rights and |