Brandmeier v. Pond Creek Coal Co.

• Court: Pennsylvania Supreme Court
• Writing for the Court: MR. JUSTICE BROWN:
• Citation: Brandmeier v. Pond Creek Coal Co., 229 Pa. 280, 78 A. 273 (Pa. 1910)
• Decision Date: 17 October 1910
• Docket Number: 90
• Parties: Brandmeier v. Pond Creek Coal Company, Appellant

78 A. 273

229 Pa. 280

Brandmeier v. Pond Creek Coal Company, Appellant

No. 90

Supreme Court of Pennsylvania

October 17, 1910

Argued April 12, 1910

Appeal, No. 90, Jan. T., 1910, by defendant, from judgment of C.P. Luzerne Co., June T., 1904, No. 127, on verdict for plaintiffs in case of Frederick Brandmeier and Mary Mills v Pond Creek Coal Company. Reversed.

Assumpsit for use and occupation of coal land. Before FULLER, J.

At the trial plaintiffs offered in evidence the record of the ejectment suit of the plaintiffs against the defendant, with the verdict and judgment thereon, followed by the habere facias for the possession of the land for the use and occupancy of which and the use thereof, suit in this case is now pending, for the purpose of showing that the judgment was in favor of the plaintiffs.

Defendant objected to the evidence as being immaterial and irrelevant to this issue.

Objection was overruled, the evidence admitted, exception noted and bill sealed for defendant. [6]

Defendant presented this point:

1. The plaintiffs have declared in assumpsit for the use and occupation of land by the lessee of two of the four tenants in common, and for mining coal thereon, and having failed to show a contractual relation between plaintiffs and defendant either by an express promise or such facts as would imply a promise by defendant to pay plaintiffs for such use and occupation, and for such coal mined, are not entitled to recover. Answer: I refuse all of the points presented by defendant. [1]

Verdict and judgment for plaintiffs for $13,471.64. Defendant appealed.

FULLER J., filed the following opinion:

On motion for a new trial and for judgment non obstante veredicto the defendant now urges:

1. That the action cannot be maintained in its present form of assumpsit.

The praecipe, the writ, and the statement, all designate the action as one of assumpsit, although the claim set forth in the statement and urged upon the trial was one for damages suffered by ouster of plaintiffs from the common property, and not arising from contract express or implied.

We cannot pronounce a panegyric upon the skill displayed in the pleadings, nor are we asked to do so, but that is a lost art and if a fair trial has been had upon the merits, we should dislike to upset the whole proceeding on the technical distinction between trespass and assumpsit.

The logic of defendant's contention is that if the cause of action be regarded as assumpsit for use and occupation, it fails for want of a contract, and if it be regarded as trespass for mesne profits, it fails for disregard of the form. But in National Oil Refining Co. v. Bush, 88 Pa. 335, it was said that an action for use and occupation "is not necessarily founded upon a specific contract, written or oral, but upon the use of the premises. The occupant may be in fact a trespasser, but the owner of the tenement may waive the trespass and recover in assumpsit and it does not lie with the tort feasor to defeat him by interposing his own wrong."

This case was not mentioned in Reilly v. Crown Petroleum Co., 213 Pa. 595, where the plaintiff after recovery in ejectment brought an action of assumpsit in which the statement showed a liability in trespass for mesne profits, and a demurrer to the statement was upon that ground sustained; but the last-cited case in turn was not mentioned in Sipe v. Penna. Railroad Co., 219 Pa. 210, in which it was held that a demurrer on that ground should not be sustained.

No doubt the apparent inconsistency may be reconciled, but without undertaking the task we will simply hold that after plea in bar, without demurrer, the defect is cured against attack on objection to evidence, motion for nonsuit, or request for binding instructions.

In either form of action the essence of the claim when defendant is in actual occupancy, is the use of the property measured by rental value, and the whole sum and substance of the situation as here presented on pleadings and proof is that the plaintiffs have brought an action of assumpsit to recover their proportionate share of the rental value during the period of exclusive occupancy by the defendant.

The defendant also invokes the Act of April 25, 1850, P.L. 573, as affording an exclusive remedy between tenants in common, barring both trespass and assumpsit, but that act in terms applies to an accounting for coal, iron ore, or other minerals taken by said tenants respectively, while the plaintiffs in this case do not seek any such accounting.

We hold, therefore, that the action of trespass would have been proper, but that no advantage can be taken of the technical error committed in designating the action assumpsit, and that the defendant's...