Gray v. Philadelphia & Reading Coal & Iron Co.

• Decision Date: 15 March 1926
• Docket Number: 98
• Citation: 132 A. 820,286 Pa. 11
• Parties: Gray, Appellant, v. Phila. & Reading Coal & Iron Co. et al
• Court: Pennsylvania Supreme Court

132 A. 820

286 Pa. 11

Gray, Appellant, v. Phila. & Reading Coal & Iron Co. et al

No. 98

Supreme Court of Pennsylvania

March 15, 1926

Argued February 8, 1926

Appeal, No. 98, Jan. T., 1926, by plaintiff, from decree of C.P. Schuylkill Co., March T., 1925, No. 2, dismissing bill in equity, in case of Violet A. Gray v. Phila. & Reading Coal & Iron Co. et al., and S. V. Gorman, Executor of Edward Gorman's Estate, doing business as the Bell Colliery. Reversed.

Bill for injunction. Before KOCH, J.

The opinion of the Supreme Court states the facts.

Bill dismissed. Plaintiff appealed.

Error assigned was decree, quoting it.

The decree of the court below is reversed, plaintiff's bill in equity is reinstated, and the record is remitted for further proceedings not inconsistent with this opinion.

G. H Gerber, with him A. D. Knittle, for appellant.

Geo. M Roads, for the Mill Creek Coal Co., the Maryd Coal Co. and Alliance Coal Co., appellees.

George Ellis and John F. Whalen, for Philadelphia & Reading Coal & Iron Co., appellee, presented no oral argument.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART and SCHAFFER, JJ.

OPINION

MR. JUSTICE SIMPSON:

The bill in equity in this case may be briefly summarized as follows: Plaintiff avers that she is the owner of property abutting on the Schuylkill River; that the eight defendants are coal mining companies, which are operating their mines, breakers and washeries on or near the river or its tributaries, at points above her property; that in the course of such operation they allowed coal dust, culm, muck and other refuse material (hereinafter generically called coal dirt), coming from their mines, breakers and washeries, to be cast into the stream, so shallowing it, that, by the natural flow of the current, "during the ordinary high water experienced and to be expected in this climate and section of country," it ran over and was deposited on her land, and in the cellars of her houses, to her great loss and irreparable injury; this being aggravated by their so placing an obstruction in the river, and so narrowing the channel, that some of the coal-dirt-laden water of the stream was diverted from its usual course, and turned towards and ultimately flowed on her property, which it would not have reached otherwise. She also alleged that, so far as concerned the coal dirt from defendants' plants, part of it was carried into the river as a necessary result of their method of preparing the coal for market, and the rest of it came from artificial piles of such coal dirt, so negligently placed upon their properties, that, in ordinary rainfalls, it was washed into the stream. She further averred that defendants were the only known parties contributing to her injury; that "the original material deposited and permitted to escape by each defendant, is not separate and distinguishable, at and in the vicinity of the property of complainant, from that which is now and has been deposited or been permitted to escape by each of the other defendants . . . thus making the injury and damage to the plaintiff the single, united and combined acts of all the defendants." She prayed an injunction against all of them, and an award of appropriate damages against each.

In accordance with the 48th Equity Rule, defendants, by their answers, raised two classes of preliminary objections to the bill; one challenging the jurisdiction of equity, and the other alleging that the facts were so insufficiently averred as to render it impossible for them to make an adequate answer to the bill. After argument, the court below dismissed the bill, in an opinion which discussed at length both classes of objections. Plaintiff appeals.

So far as concerns the second class, but little need be said at this time. Assuming these objections are valid, -- though most of them complain of matters which are more properly the subject of proof than of pleading -- they could not result in a dismissal of the bill, for Equity Rule 49 expressly provides that, if such objections are sustained, the court shall "require plaintiff to amend . . . within such time as the court shall prescribe," under a penalty of dismissal, if such amendment is not made. The course of procedure thus provided for, -- which prevents the ancient injustice of at once dismissing an action for a failure to plead properly, -- was deliberately adopted to comport with the provisions of the Practice Act of May 14, 1915, P.L. 483 which requires that, in determining whether or not a summary judgment should be entered, "the question to be decided . . . is not whether the statement is so clear, in both form and specification, as to entitle plaintiff, without amendment, to proceed to trial, but whether, upon the facts averred, it shows, as a 'question of law,' that plaintiff is not entitled to recover": Rhodes v. Terheyden, 272 Pa. 397, 401; Drabant v. Cure, 274 Pa. 180; ...