Donze v. Devlin

• Court: Pennsylvania Supreme Court
• Writing for the Court: MR. JUSTICE DREW:
• Citation: Donze v. Devlin, 329 Pa. 1, 195 A. 882 (Pa. 1938)
• Decision Date: 03 January 1938
• Docket Number: 329
• Parties: Donze et al., Appellants, v. Devlin

195 A. 882

Donze et al., Appellants, v. Devlin

329 Pa. 1

No. 329

Supreme Court of Pennsylvania

January 3, 1938

Argued December 7, 1937

Appeal, No. 329, Jan. T., 1937, from judgment of C.P. No. 4 Phila. Co., Sept. T., 1931, No. 4328, in case of Thomas J Donze, by his father, Martin F. Donze, and his mother, Loretta Donze and Martin F. Donze and Loretta Donze in their own right, v. Mary T. Devlin, executrix of Estate of John Devlin, Jr., deceased. Judgment reversed with a venire.

Trespass for personal injuries. Before KEENAN, J., specially presiding.

The opinion of the Supreme Court states the facts.

Compulsory nonsuit entered. Motion to take it off refused. Plaintiffs appealed.

Error assigned was refusal to take off nonsuit.

Judgment reversed with a venire.

Maurice H. Brown, with him William N. Nitzberg and W. F. Starsinic, for appellants.

Layton M. Schoch, for appellee.

Before SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES, JJ.

OPINION

MR. JUSTICE DREW:

The appeal is from the refusal to take off a compulsory nonsuit entered at the conclusion of plaintiffs' evidence. Whether they established a prima facie case, taking the testimony in its most favorable light (Foley v. Wasserman, 319 Pa. 420; Burns v. Pittsburgh, 320 Pa. 92; Deemer v. Weaver, 324 Pa. 85), is the controlling question. If they did the nonsuit must be set aside.

In 1929 the Board of Public Education of the School District of Philadelphia executed a written lease of the Fox Chase School Building, no longer used for school purposes, to Boy Scout Troop No. 283, District 10. The lease was from month to month at a nominal rent, either party having the right to terminate it upon twenty days' written notice. Following the execution of the lease, the building was constantly used by the scouts, and in it all the equipment that the troop possessed was stored, including various flags, banners, drums, desks, books, and other paraphernalia. Without notice to the lessee the board of education awarded a contract for the demolition of the school building. The contractor had begun the work of destruction on August 19, 1931, when it came to the attention of the scouts. Several of them started to remove the troop's equipment and were stopped by the contractor's foreman, who told them they might return late in the afternoon after the men quit work. This they did, bringing with them a younger brother of two members of the troop, ten years of age. The latter, while assisting in recovering some books from a window sill in one of the rooms on the second floor, fell through the open floor and was injured. It appears that "about five feet from the wall the whole length of the floor" had been torn up and that the only means of access to the books on the window sill was a "beam" or "joist." It was while walking along this "beam" or "joist" that the boy slipped and fell. The suit is by the injured boy and his parents to recover for the minor's personal injuries; it is now directed against the personal representative of the contractor, his death having preceded the time of trial.

We think the nonsuit improper. The right to the possession of the school premises was in the lessee troop. Plaintiffs' testimony was to the effect not only that no notice to terminate was ever given, but there is also a presumption of the continuance of a lease until notice of its termination American Coal Land Co. v. Miller, 182 Ky. 51; Dobbelaar v. Hughes, 109 N.J. Eq. 200; see 2 Greenleaf, Evidence (16th ed.), section 319. A status...