Dundas v. Muhlenberg's Executors

• Decision Date: 01 January 1860
• Citation: 35 Pa. 351
• Parties: Dundas versus Muhlenberg's Executors.
• Court: Pennsylvania Supreme Court

Page 351

35 Pa. 351

Dundas versus Muhlenberg's Executors.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Schuylkill county.

Bannan, for the plaintiff in error.—Bittinger was not a competent witness for the plaintiffs below; for by the recovery against the defendants, the tort is merged in the judgment, and would be a bar to another action for the same cause against the witness: King v. Hoare, 13 M. & W. 504; Broome v. Wooton, Yelv. 67; S. C., Cro. Jac. 73, and Moore 762; Downey v. Farmers' and Mechanics' Bank of Greencastle, 13 S. & R. 288; Emerton v. Andrews, 4 Mass. 653; Rhodes v. Lent, 3 Watts 364; Keymborg v. Burbridge, 1 Jones 535; Christy v. Smith, 23 Verm. 663; Hodson v. Marshall, 7 Car. & P. 16.

The authorities are clear in denying the liability of the landlord for a wrong committed by the tenant to a third person: Offerman v. Starr, 2 Barr 394; Earle v. Hall, 2 Met. 353; Hilliard v. Richardson, 3 Gray 349; Blake v. Ferris, 1 Seld. 48; Quarman v. Burnett, 6 M. & W. 499.

F. W. Hughes and D. B. Green, for the defendants in error.— A joint trespasser has always been held to be a competent witness

for the opposite party: Bowen v. Burk, 1 Harris 146; Kennedy v. Philipy, Id. 408; 1 Greenl. Ev., § 409; 1 Starkie's Ev. 131, 222; 7 Wend. 225; 11 Eng. Com. L. 257; 17 Id. 466.

The plaintiffs do not claim to recover because the relation of landlord and tenant existed between Bittinger and the defendants, but because they so far participated in his acts as to make them equally liable with him. In trespass, the intent of the wrongdoer is immaterial, and therefore ignorance that the act in question was a trespass on the lands of another, cannot be set up to prevent a recovery: 1 Chit. Pl. 129, 166, 171; 1 Campb. 497; 2 Id. 575; 5 Mass. 341; 11 Id. 500; 2 Greenl. Ev., § 622. If the defendants participated in Bittinger's wrongful acts, they are liable to the plaintiffs: Wall v. Osborn, 12 Wend. 40; Bard v. Yohn, 2 Casey 489; 19 Johns. 382; 2 Greenl. Ev., § 621; Flewster v. Royal, 1 Campb. 187; Stonehouse v. Elliott, 6 T. R. 315.

The opinion of the court was delivered by LOWRIE, C. J.

Though Bittinger might have been himself sued for this coal, yet we know of no principle that excludes him from being a witness for the plaintiff, to establish the claim against those who participated in the injurious act; and there are authorities enough in favour of his competence: 1 Harris 146, 408; 1 Greenl. Ev., § 409.

The charge of the court was in substance that, in order to entitle the plaintiff to recover...