Ference v. Booth & Flinn Co.

• Decision Date: 23 April 1952
• Docket Number: 7801
• Parties: FERENCE et al. v. BOOTH & FLINN CO.
• Court: Pennsylvania Supreme Court

88 A.2d 413

370 Pa. 400

FERENCE et al. v. BOOTH & FLINN CO.

No. 7801

Supreme Court of Pennsylvania

April 23, 1952

Argued March 27, 1952

Appeal, No. 33, March T., 1952, from order of Court of Common Pleas of Allegheny County, July T., 1946, No. 2046, in case of Stanley Ference, Jane A. Ference and the Potter Title and Trust Company, etc., v. Booth and Flinn Company. Order affirmed; reargument refused May 27, 1952.

Trespass. Before KENNEDY, J.

Compulsory nonsuit entered; motion to take off non-suit refused. Plaintiffs appealed.

Order affirmed.

James J. Lawler , with him James A. Geltz, Leo Daniels , and Prichard, Lawler, Malone & Geltz , for appellants.

Arthur M. Grossman , with him J. Wray Connolly, William S Moorehead, Jr., and Moorhead & Knox , for appellee.

Before DREW, C.J., STEARNE, JONES, BELL, CHIDSEY and MUSMANNO, JJ.

OPINION

MR. CHIEF JUSTICE DREW

Booth and Flinn Company, a Pennsylvania Corporation, defendants while constructing a road for the Commonwealth allegedly caused a subsidence of a higher road rendering it impassible and making it necessary for business owned by plaintiffs to detour, with a resultant loss of patronage and increased expenses. To recover damages for the loss thus suffered plaintiffs brought this suit. At the conclusion of plaintiffs' evidence a non-suit was entered. This appeal is from an order refusing to remove that non-suit.

On November 30, 1944, defendant entered into a contract with the State Highway Department of the Commonwealth of Pennsylvania to extend the Ohio River Boulevard westwardly from Leetsdale to Ambridge in Allegheny County. The specifications provided for a fifty-foot wide divided highway to be located in the low ground north of the Pennsylvania Railroad tracks on the right bank of the Ohio River. In order to meet these specifications it was necessary to excavate at the foot of a steep hillside. Beaver Road was located some distance up that same hill and on July 24, 1945, while defendant was excavating at the foot of the hill a slide occurred which caused large fissures and cracks in Beaver Road resulting in its being closed to traffic on that date.

Plaintiffs a partnership trading as Ohio River Motor Coach Company, operated a bus line between Aliquippa and Pittsburgh under a license issued by the Pennsylvania Public Utility Commission. The route used by plaintiffs under their certificate included the portion of Beaver Road affected by the slide. When Beaver Road was closed on July 24, 1945, plaintiffs were forced to use a detour which added twenty-nine and a half miles to each round trip. To eliminate that extra mileage they later adopted a shuttle system which required the passengers to walk a distance of some four hundred feet through the slide area. Finally, when complaints were received from passengers, they adopted a new detour which reduced the added distance to twenty-four and a half miles per round trip. This last system was used until defendant finished clearing the slide area on November 30, 1945, and Beaver Road was re-opened to traffic.

It is self evident that the additional mileage resulted in added expenses to plaintiffs and it is equally obvious that the inconvenience to passengers would result in a loss of trade to plaintiffs. The learned court below held that these losses were damnum absque injuria and accordingly entered a non-suit. We are in accord with that conclusion.

The evidence establishes that defendant was an independent contractor in the construction of the Ohio River Boulevard extension. The lower court so concluded and that conclusion is not questioned here. Nor could it be in view of the fact that defendant was to furnish and pay for all labor, materials and equipment and its compensation in turn was based on the completed job. The mere fact that the Commonwealth maintained an engineer on the job to see that the plans and specifications were followed was not sufficient to establish defendant as an agent.

It is hornbook law that the immunity from suit of the sovereign state does not extend to independent contractors doing work for the state. But it is equally true that where a contractor performs his work in accordance with the plans and specifications and is guilty of neither a negligent nor a willful tort, he is not liable for any damage that might result: 40 C.J.S., Highways, § 212, p. 208.

At the trial plaintiffs conceded that the slide was not caused by any negligence on the part of defendant. They argue, however, that defendant did cause the slide which obstructed Beaver Road while in the performance of its contract, and having caused the slide, defendant was under a duty to remove it within a reasonable time. Plaintiffs conclude from this that what constituted a reasonable time under the circumstances was a question for the jury.

For purposes of considering the propriety of granting a non-suit, it must be taken as established that defendant caused the slide which damaged Beaver Road. The evidence shows that no slides had occurred in this area at least within the past nine years but that in March of 1945, while the work was in progress, a slide occurred and that the second and more severe slide which is here complained of occurred hile defendant was working at the foot of the hillside in that area. Certainly in the present state of the record, that evidence is sufficient to support the inference contended for by plaintiffs.

We cannot agree that the obstruction to Beaver Road, while defendant was properly carrying out the specifications of its contract with the State, constituted an immediate nuisance requiring its removal in the shortest possible time. To reach the result sought by plaintiff on these facts would compel us to so hold.

The right to obstruct a public road is, of course, extremely limited but where the obstruction is necessarily caused by the construction of a new road it does not constitute a nuisance unless it is unreasonably prolonged: Mellick v. Railroad Co., 203 Pa. 457, 53 A. 340; Lund v. St. Paul M. & M. Ry. Co., 31 Wash. 286, 71 P. 1032; Jones v. Hayden , 310 Mass. 90, 37 N.E.2d 243. This rule is particularly well stated in Lund v. St. Paul M. & M. Ry. Co., supra, where the Supreme Court of Washington said: "The city had the undoubted right to close the street for the purpose of building the bridge, and the obstruction occasioned thereby could not within a reasonable time have been classified as a nuisance. The city delegated the respondent company to make the improvement, and thereby vested in with authority to exercise the privileges belonging to the city in the premises. Therefore, as long as respondent exercised reasonable diligence, the obstruction could not constitute a nuisance. But, if want of care and diligence existed, then the obstruction was no longer a necessity, and became a nuisance." (Italics added).

Here, it cannot seriously be argued that the obstruction of Beaver Road was unnecessary. Defendant was properly carrying out its contract with the Commonwealth when it caused the slide. Since plaintiffs concede that defendant was guilty of no negligence, in the way it performed the work, the inference is inescapable that the slide was a necessary result of following the plans and specifications of the contract. The only remaining question is whether the obstruction was removed within a reasonable time.

The...