Hower v. Ulrich

• Decision Date: 19 July 1893
• Docket Number: 381
• Citation: 156 Pa. 410,27 A. 37
• Parties: Hower, Appellant, v. Ulrich
• Court: Pennsylvania Supreme Court

27 A. 37

156 Pa. 410

Hower, Appellant, v. Ulrich

No. 381

Supreme Court of Pennsylvania

July 19, 1893

Argued May 23, 1893

Appeal, No. 381, Jan. T., 1893, by plaintiff, A. D. Hower from judgment of C.P. Northumberland Co., Dec. T., 1891, No 7, on verdict for defendant, David Ulrich.

Appeal from justice of peace. Plea, not guilty.

At the trial, before SAVIDGE, P.J., it appeared that plaintiff employed defendant to cultivate his farm. Plaintiff claimed that defendant had no interest in the grain, but was to place it in plaintiff's granary and cribs. There was evidence that during the fall of 1890 defendant and his wife and children husked the corn, and that some of the family hauled a portion of it to the crib of defendant or his wife.

The court charged in part as follows:

"If you find that the defendant did haul this corn from the Hower farm to the Ulrich crib, as contended for by the plaintiff, then your verdict ought to be for the plaintiff. If, on the other hand, you find the contention of the defendant correct and he did not carry away the corn of Mr. Hower, then your verdict ought to be for the defendant. It is contended that this Ulrich property and crib belonged not to David Ulrich but to Margaret. Now if the defendant carried away the corn to the crib, or assisted, aided or abetted in carrying it away, or directed it to be carried away, it makes no difference whether it was carried to Margaret Ulrich's crib or not, the plaintiff would be entitled to recover. [But if somebody else carried it away, if the children, or family, or any of the children or family of the defendant, and he was not present and did not aid, abet or counsel, then of course he would not be guilty. This is an action of trespass, and the defendant must be guilty of the wrongful or tortious act himself or have advised or assisted in some way before he can be found guilty.] . . . .

"If these children were in his employ and he knew of it and he countenanced it and directed it, he would be responsible, even though he was not on the ground himself."

Verdict and judgment for defendant. Plaintiff appealed.

After judgment was entered against plaintiff for costs, the amount of the judgment was attached in his hands by a creditor of defendant. After the date of the attachment, defendant issued a fi. fa. Subsequently the attachment was discontinued. Prior to the discontinuance of the attachment a rule was taken to show cause why the fi. fa. should not be set aside. The court discharged the rule. [4]

Errors assigned were (3) instructions, in brackets, quoting them; (4) discharge of above rule.

Judgment reversed and venire de novo awarded.

S. B. Boyer and A. D. Hower, for appellant, cited: On question of conversion: Nieman v. Ward, 1 W. & S. 68; Heilbruner & Co. v. Wayte, 51 Pa. 259; Parker v. Donaldson, 6 W. & S. 137; Lowry v. Reed, 59 Pa. 425; McClung v. Dearborne, 134 Pa. 396; Kerns v. Piper, 4 W. 222; Washington Mutual Ins. Co. v. Rosenberger, 3 W.N. 16, s.c., 33 Leg. Int. 338. On effect of attachment: Kase v. Kase, 34 Pa. 131; Childs v. Digby, 24 Pa. 23; Breading v. Siegworth, 29 Pa. 399; Prescott v. Otterstatter, 85 Pa. 538; Budd v. P. & R.R., 102 Pa. 220; act of June 16, 1836, P.L. 768.

Lorenzo Everitt, for appellee, cited, on question of conversion: Yerger v. Warren, 31 Pa. 319; Ry. v. Donahue, 70 Pa. 119.

Before STERRETT, C.J., WILLIAMS, MITCHELL, DEAN and THOMPSON, JJ.

OPINION

MR. JUSTICE MITCHELL:

The learned judge instructed the jury that "if somebody else carried it (the corn) away, if the children or family of the defendant, and he was not present and did not aid, abet or counsel them, of course he would not be guilty. This is an action of trespass, and the defendant must be guilty of the wrongful or tortious act himself, or have advised or assisted in some way before he can be found guilty." This would have been entirely correct if the trial had been, as under the evidence it might well have been, on an indictment for larceny by bailee, but in a civil action for damages it put the defendant's liability on too narrow a basis. By his contract defendant was to gather the corn and put it in plaintiff's barn. The corn was gathered by defendant or his family, and there was evidence that some of them had carried off part of it and put it in his own, or his wife's bin. Whether he was present or not was disputed, and the learned judge charged as already quoted that if "he was not present and did not aid, abet or counsel" he was not liable. Later on the charge was qualified somewhat in this respect by the direction that "if these children...