Devlin v. Philadelphia School District

• Court: Pennsylvania Supreme Court
• Writing for the Court: MR. DREW, JUSTICE
• Citation: Devlin v. Philadelphia School District, 337 Pa. 209, 10 A.2d 408 (Pa. 1940)
• Decision Date: 02 January 1940
• Docket Number: 238
• Parties: Devlin, Exrx., Appellant, v. Philadelphia School District

10 A.2d 408

337 Pa. 209

Devlin, Exrx., Appellant, v. Philadelphia School District

No. 238

Supreme Court of Pennsylvania

January 2, 1940

Argued November 30, 1939

Appeal, No. 238, Jan. T., 1939, from judgment of C.P. No. 2 Phila. Co., March T., 1938, No. 398, in case of Mary T Devlin, executrix, to use, v. The School District of Philadelphia. Judgment affirmed.

Case stated in assumpsit. Before LEWIS, J.

The opinion of the Supreme Court states the facts.

Judgment entered for defendant on case stated. Plaintiff appealed.

Error assigned, among others, was final judgment.

Judgment affirmed; appellant to pay costs.

Maurice H. Brown, with him William N. Nitzberg, for appellant.

Charles I. Thompson, with him James W. Nelson and Robert von Moschzisker, for appellee.

Before KEPHART, C.J., SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES, JJ.

OPINION

MR. DREW, JUSTICE

After our decision in Donze v. Devlin, 329 Pa. 1, wherein we held that the lower court erred in refusing to take off a compulsory nonsuit, the counsel in that action arrived at an amicable settlement, and judgment was entered by stipulation against the defendant. The present use plaintiff paid this judgment of $2,500. This action in assumpsit was instituted to recover that amount, which it is agreed was a fair and reasonable settlement, and other costs in connection with the litigation. This appeal is from the action of the lower court in entering judgment for defendant upon the basis of a stipulation of facts agreed by counsel to constitute a case stated.

In 1929 the School District of Philadelphia leased a vacant school building to Boy Scout Troop No. 283, District 10, from month to month at a nominal rent. Following the execution of the written lease, the scouts constantly used the building and stored therein certain troop property, including books, desks, flags and drums. On July 28, 1931, the School District entered into a contract with John Devlin, Jr., for the demolition of the building. It did not inform him, however, of the scouts' leasehold interest. It likewise neglected to terminate the lease or in any manner notify the scouts that the demolition work was to begin. On the morning of August 19, 1931, the lease being still in full force, three of the scouts, having just learned that the building was being torn down, went there to remove the troop property. They were prevented from doing so by Louis Doyle, Devlin's foreman, who told them to come back later when the men were not working, "if they wanted to get their stuff out." This they did, bringing with them a younger brother of two members of the troop, a boy ten years of age. The latter, while helping retrieve some books from a window sill in one of the rooms of the second floor, fell through the open floor and was injured. The whole length of the floor had been torn up for a distance of five feet from the wall. As he was walking along a beam to get to the sill, he slipped on some loose plaster and fell.

On appeal to this court in the action by the minor and his parents to recover damages for the boy's injuries, we held the nonsuit entered to be improper upon the ground that the minor was an invitee of the rightful tenant of the premises, and that the contractor, as a trespasser, was responsible for his negligence in creating a condition which he should have recognized as involving an unreasonable risk of causing the injury which in fact occurred. We concluded by saying (Donze v. Devlin, supra, page 4): "The contractor completely disregarded the scouts' superior right to the premises and his negligence was for a jury's consideration. It may be added that the contributory negligence of a child ten years old is particularly for a jury. Needless to say, defendant's evidence may completely change the appearance of the case." However, the voluntary settlement of the case precluded any judicial determination of the present plaintiffs' liability to the Donzes. At no time during the course of the action did the contractor give the School District an opportunity to participate in defense of the action, nor was it ever suggested by the present plaintiffs prior to February 21, 1938, that they considered the School District to be the true party responsible. It was at that time, one week after payment of the sum agreed upon in the settlement, that they first made demand upon the School District for reimbursement.

The position taken by the learned court below is unanswerable. It based the entry of judgment for defendant upon the ground that the primary cause of the injuries sustained by the boy was an independent act of negligence of the foreman employed by the contractor. The reasoning bears repeating here: "It is probable that the foreman did not realize that his employer was in the position of a trespasser with respect to the tenant of the building. Nevertheless, he was aware of the conditions within...