Flynn v. City of Philadelphia
| Decision Date | 27 May 1901 |
| Docket Number | 307 |
| Citation | 199 Pa. 476,49 A. 249 |
| Parties | Flynn v. Philadelphia, Appellant |
| Court | Pennsylvania Supreme Court |
Argued April 2, 1901 [Copyrighted Material Omitted]
Appeal, No. 307, Jan. T., 1900, by defendant, from order of C.P. No. 3, Phila. Co., Dec. T., 1898, No. 401, dismissing exceptions to report of referee in case of Patrick H. Flynn et al., trading as P.H. Flynn & Company v. City of Philadelphia. Affirmed.
Exceptions to report of J. Willis Martin, Esq., referee.
The facts appear by the opinion of McCARTHY, J., which was in part as follows:
On September 18, 1896, the plaintiffs entered into a written contract with the defendant by which they agreed to furnish and deliver the materials and perform the work and labor required on the construction of retaining walls and reconstruction of buildings and other work in a certain portion of the subway constructed along Pennsylvania avenue for the purpose of abolishing grade crossings of the city streets over the tracks of the Philadelphia and Reading Railroad. While the work under this contract was progressing, the lines and grades of Pennsylvania avenue having been revised so as to involve a change of grade and a widening on both sides of the avenue, between Eighteenth and Nineteenth streets -- that portion of the highway embraced within the plaintiffs' contract -- a road jury was appointed to assess damages to property occasioned by the change of grade of Pennsylvania avenue. Before this jury a number of claimants -- amongst them, Annie E. Stork -- presented claims for damages to their respective properties, resulting not from the actual taking of the land, but from injuries consequent upon the construction of the retaining wall of the subway. The city notified the plaintiffs of the presentation of these claims. The jury awarded an aggregate of $10,115 to the claimants. The plaintiffs afterwards completed their work under the contract and sought a final settlement, but the director of public works retained the sum mentioned, asserting the right under the contract to do this until satisfactory evidence should be furnished him that the awards of the road jury had been settled. Plaintiffs thereupon brought this action to recover the amount so retained.
The awards of the road jury have not been settled. The city of Philadelphia took appeals therefrom, some of which are still pending. In the matter of the appeal from the award to Annie E. Stork, the case was tried in court of common pleas No. 4, of this county, and a verdict and judgment rendered for the claimant, from which the city appealed. The Supreme Court, Mr. Justice MITCHELL delivering the opinion, sustained the city's appeal and reversed the judgment. The ground of reversal is that "the injury complained of was not the necessary consequence of the improvement authorized and undertaken by the city." "The liability declared upon, therefore, arose if at all from negligence, and could not be enforced in this form of proceeding:" Stork v. Philadelphia, 195 Pa. 101, 108.
When the learned referee made his original report this case was still pending and undetermined. He finds that the awards made by the jury of view were a part of the compensation to which property owners were entitled for the right of way taken by the city under the right of eminent domain. In the light of Stork's case, however, this position is not maintainable, and so much of the report must be amended in conformity with the decision in that case. By his supplemental report the learned referee answers the two questions submitted to him by reporting that there was no evidence presented which warranted a finding that the damage to the properties arose from the negligence of the contractors, and by finding as a fact that the damage was the result of the work done by the contractors, although without negligence on their part. By his original report, the learned referee found as a fact that "there was no evidence offered before the referee to prove that the work under the contract was not performed according to its terms in the ordinary and customary manner under the immediate supervision of the director of the department of public works and his authorized assistants and in accordance with the instructions of the city's chief engineer or his authorized assistant, and there was no proof of negligence on the part of the plaintiffs or their agents."
The case presented on this record is therefore the following:
The plaintiffs have fully and satisfactorily performed their contract in accordance with its terms; they have not been guilty of any negligence while performing it; the work was performed under the immediate supervision and in accordance with the instructions of the city's chosen officials; it conformed strictly with the plans furnished by the city; certain properties have sustained damage as a result of the work done under the contract, but not as a result of negligence on the part of the contractors; the owners of these damaged properties have brought suit against the defendant for compensation for their injuries.
Under these circumstances, has the city a right to withhold the moneys of the contractors until the claims are settled?
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