Canole v. Allen
| Decision Date | 23 June 1908 |
| Docket Number | 26 |
| Citation | 70 A. 1053,222 Pa. 156 |
| Parties | Canole v. Allen, Appellant |
| Court | Pennsylvania Supreme Court |
Argued April 14, 1908
Appeal, No. 26, Jan. T., 1908, by defendants, from judgment of C.P. Luzerne Co., Feb. T., 1906, No. 441, on verdict for plaintiff in case of John F. Canole v. Walter J. Allen and Jennie A. Allen. Reversed.
Trespass to recover damages for the alleged wrongful removal of a dwelling house from plaintiff's land. Before WHEATON, J.
The facts are stated in the opinion of the Supreme Court.
Verdict and judgment for plaintiff for $2,300. Defendants appealed.
Error assigned among others was (6) answer to plaintiff's point, quoted in the opinion of the Supreme Court.
Judgment reversed and a venire facias de novo awarded.
M. J Mulhall, with him John McGahren, for appellants.
John T. Lenahan, with him James L. Lenahan, for appellee.
Before MITCHELL, C.J., FELL, MESTREZAT, POTTER and STEWART, JJ.
This controversy has its origin in a disputed title to a lot of ground at Harvey's Lake. The appellants, Walter A. Allen and Jennie A., his wife, were in possession of the lot, claiming under a tax title in the wife's name. Trusting, unwisely as it turned out, in the sufficiency of this title, they proceeded to erect a building on the lot, the husband actively participating in and superintending the work. Before the foundations had been completed Canole, the appellee, learning that work was being done by someone on the lot, went to the premises and there had an interview with the husband, in the course of which he asserted his ownership, and warned Allen against proceeding further with the building. The Allens proceeded notwithstanding to complete the building. After its completion Canole brought ejectment. He was successful in the court below and in the Superior Court on appeal taken. A writ of habere facias followed, and re-entry was made thereunder. But the two-story frame dwelling which the Allens had built upon the lot, and which Canole saw when he last visited the premises, was then missing. As soon as the record in the ejectment suit had been returned from the Superior Court, Walter A. Allen, the husband, with an expedition that frustrated the injunction process which the plaintiff had invoked, had moved the building bodily from its foundations over upon an adjoining lot. Thereupon the plaintiff, possession of the lot having been restored to him, began the present action to recover damages.
The case as tried in the court below presents some very peculiar features, which are but feebly disclosed in the assignments of error. Ordinarily we are not concerned to inquire into errors committed on the trial of a case not specifically assigned for review. Where the record of a case shows departure from established rules and procedure, affecting only the rights of the parties to the action, and no specific complaint is made with respect thereto, we assume that the departure was made by and with mutual consent -- conventio legem vincit. Not so, however, where the departure manifests a clear disregard of recognized public policy, or is in violation of express statutory provisions. Restrictions so imposed are not subject to the pleasure of the parties or the power of the courts. In such case this court will take notice of the error whether assigned or not. The present case serves as an example. While involving questions both of law and fact, it was tried by the court just as though there had been a written submission filed, dispensing with the jury. The trial judge determined what the facts of the case were, and the only office performed by the jury was to return perfunctorily the verdict which he directed. This fact is without special significance except in connection with a single assignment to be considered later, and is referred to here only that the method observed on the trial may be the better understood. The action was trespass against the husband and wife jointly. The wife was not present when the trespass was committed. A recovery against her could be allowed, of course, only as it was shown that the husband who committed the trespass was, in so doing, the wife's agent. The whole case against the wife turned upon the question of the husband's agency. To establish it the plaintiff called the husband to the stand to testify as under cross-examination; and was permitted to show by him that in removing the building from the plaintiff's lot he was acting for the wife as her authorized agent. Outside the testimony of the husband, elicited in the manner stated, there was not a particle of evidence that the wife had any part in the removal of the building, or had any knowledge that it had been removed. Indeed, the husband was the only witness called by the plaintiff; he rested the whole case, in all its parts, upon the enforced testimony of this single witness. On such evidence a recovery against the wife was not only permitted, but was ordered by the judge; and that too for an amount more than seven times as great as the value of the plaintiff's lot. The evidence was admitted under objection, but its admission, strange to say, is not assigned as an error. The error is too plain and palpable to escape notice even without an assignment to bring it to our attention; and since it involves a most serious transgression of a fundamental policy which has endured as long as our jurisprudence, and which instead of suffering impairment or modification by reason of changed conditions, has been reinforced by legislation, it becomes our duty not only to notice it, but reprobate it. At common law husband and wife are incompetent to testify against each other. This rule has never been relaxed; on the contrary, it has been reinforced and guarded from invasion by statutory enactment. Our Act of May 23, 1887, P.L. 158, defining...
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