Kopka v. Bell Telephone Co. of Pa.

CourtUnited States State Supreme Court of Pennsylvania
Citation91 A.2d 232,371 Pa. 444
Decision Date24 June 1952

Page 232

91 A.2d 232
371 Pa. 444
KOPKA et ux.
Supreme Court of Pennsylvania.
June 24, 1952.
Rehearing Denied Sept. 30, 1952.

[371 Pa. 446]

Page 233

Ella Graubart, Patterson, Crawford, Arensberg & Dunn, Pittsburgh, for appellant.

E. V. Buckley, Mercer & Buckley, Pittsburgh, for appellees.

Ernest C. Reif, Dickie, McCamey, Chilcote, Reif & Robinson, Pittsburgh, for additional defendant.

[371 Pa. 445] Before DREW, C. J., and STERN, STEARNE, JONES, BELL, CHIDSEY and MUSMANNO, JJ.

[371 Pa. 446] HORACE STERN, Justice.

This litigation involves the question of the right of a possessor of land to recover damages for personal injuries sustained by him in consequence of a trespasser's invasion of his property.

At the request of residents of a township in Indiana County for telephone service the Bell Telephone Company of Pennsylvania, defendant in this suit, had its engineers stake out a line along a road bordering the farm of the plaintiff, Walter V. Kopka. 1 It then proceeded to obtain rights-of-way from property owners along the road upon which the line was to be constructed, but no such right was obtained from the plaintiff.

Under an arrangement between the Company and one Jud Sedwick, additional defendant, the latter proceeded to erect the necessary poles to carry the wires and for that purpose drilled holes, one of which was dug inside the road on plaintiff's property; in this hole there was to be placed an anchor rod supporting a guy wire for bracing one of the poles. The Company had indicated to Sedwick where the holes were to be dug and the poles and anchor rods erected. This particular hole, 6 1/2 feet deep and 17 inches wide, was dug on December[371 Pa. 447] 19, 1947. Two days later, on the 21st, plaintiff was informed by a neighbor about it and went out to investigate, it having been dug without his permission or knowledge. It was in the latter half of the afternoon of a cloudy day and starting to get dark. While walking around to find the hole plaintiff's left leg slipped into it with the result that he allegedly sustained certain injuries. He testified, although there was strong evidence to the contrary, that there was no mound or ring of dirt thrown up around the hole and that

Page 234

the ground seemed level at that point. The hay field through which he passed he described as being 'rough and rolling, grass growed up, kind of spongy and spots of snow around in the fields.' Around where the hole was 'it was all weeds and briars and whatever it was.' Other testimony on behalf of the plaintiff was to the effect that that corner of the field 'was left in weeds, briar and morning-glory vines.'

Suit was instituted against the Telephone Company in the Court of Common Pleas of Allegheny County. The complaint alleged the defendant had, without plaintiff's permission, trespassed upon his farm and dug a hole there, and that property damage as well as personal injuries to plaintiff resulted from the negligence of defendant in thus trespassing and causing others to trespass on his farm, digging the hole there and leaving it unprotected and without barriers, thereby creating a dangerous trap. Defendant filed an answer denying that the acts complained of were done by its agents or employes, but that, on the contrary, the installation of the poles and anchor rods was made by Jud Sedwick, an independent contractor. Defendant brought Sedwick on the record as additional defendant, alleging that any damage done to plaintiff's property or injuries suffered by him were the result of additional defendant's negligence and not that of defendant. Defendant also filed a preliminary objection to the jurisdiction[371 Pa. 448] on the ground that an action for trespass to land in Indiana County could not be brought in Allegheny County. The court, without objection from plaintiff, thereupon struck from the complaint 'the cause of action for damages to the land.' It will be noted that this did not deprive plaintiff of the right to pursue his action for trespass to the land and for any damages recoverable in such an action other than those to the land itself,--in this case an entirely negligible item. Moreover we have held in Bookwalter v. Stewart, 369 Pa. 108, 85 A.2d 100, that an action of trespass to land may be brought in any county where the defendant can be served; in other words, that it is a transitory action.

The trial resulted in a verdict in favor of plaintiff and against defendant in the sum of $11,000, and a verdict in favor of the additional defendant. The court overruled defendant's motions for judgment n. o. v. and for a new trial, and ordered that judgment be entered on the verdict, from which judgment defendant now appeals.

It should be immediately obvious that, as far as plaintiff's cause of action was based upon alleged negligence in the failure to cover the hole and erect barriers, the verdict against defendant cannot be sustained. If, as plaintiff claims, Sedwick acted as defendant's agent, there would be a hopeless inconsistency between the verdict in his favor and the verdict against his employer, since, in that event, the latter could be liable only on the principle of respondeat superior; cf. Ferne, Administratrix, v. Chadderton, 363 Pa. 191, 195, 196, 69 A.2d 104, 107. On the other hand, if Sedwick was an independent contractor, it is of course axiomatic that his negligence, or that of his employes, in failing properly to perform the work entrusted to him, could not impose liability upon defendant. Only insofar, therefore, as the action is one for the unauthorized invasion[371 Pa. 449] of plaintiff's land--that is insofar as it is the common law action of quare clausum fregit--can plaintiff's recovery therein be justified. Defendant maintains that plaintiff, having chosen to proceed on the theory that defendant was negligent, 2 cannot uphold the verdict in his favor on the ground that it was nevertheless

Page 235

justified on a different theory of liability; in support of that argument defendant cites the case of Kramer, Administrator, v. Pittsburgh Coal Company, 341 Pa. 379, 19 A.2d 362. There, however, the verdict was for defendant, and plaintiff then claimed that the case should have been submitted to the jury on a theory different from, or in addition to, that on which if was presented to them. Here, however, the verdict was for plaintiff, and, if the complaint stated a cause of action and the evidence supported the allegations, plaintiff was entitled to recover, whatever the legal theory on which the liability might be based: Federoff v. Harrison Construction Company, 362 Pa. 181, 66 A.2d 817.

Before considering the question of the liability of a trespasser for personal injuries suffered by the possessor of land as an indirect result of the trespass, there [371 Pa. 450] are two relevant legal principles to be borne in mind. The first is that the fact that a trespass results from an innocent mistake and, in that sense, is not deliberate or wilful, does not relieve the trespasser of liability therefor or for any of the results thereof. Watson v. Rynd, 76 Pa. 59; Chase v. Clearfield Lumber Company, 209 Pa. 422, 58 A. 813. Thus, in Restatement, Torts, § 163, comment (b), it is said: 'If the actor intends to be upon the particular piece of land in question, it is not necessary that he intend to invade the actor's interest in the exclusive possession of his land. The intention which is required to make the actor liable * * * is an intention to enter upon the particular piece of land in question irrespective of whether the actor knows or should know that he is not entitled to enter thereon. It is, therefore, immaterial whether or not he honestly and reasonably believes that the land is his own, or that he has the consent of the possessor or of a third person having power to give consent on his behalf, or that he has a mistaken belief that he has some other privilege to enter.' So, in § 164 it is said: 'One who intentionally enters land in the possession of another without a privilege to do so is liable * * * to the possessor of the land as a trespasser thereon, although he acts under a mistaken belief of law or fact, however reasonable, * * * that he * * * (b) has the consent of the possessor or of a third person who has the power to give consent on the possessor's behalf, * * *' (See also comments (a) and (d)).

The second important principle to be noted is that one who authorizes or directs another to commit an act which constitutes a trespass to another's land is himself liable as a trespasser to the same extent as if the trespass were committed directly by himself, and this is true even though the authority or direction be given to one who is an independent contractor. Allen v. Willard, 57 Pa. 374, 381; McCloskey v. Powell, 123 Pa. 62, 73, 74, 16 A. 420, 422, 423; Id., 138 Pa. 383, 397, 21 A. 148, 149, 150; [371 Pa. 451] Silveus v. Grossman, 307 Pa. 272, 278, 161 A. 362, 364. 'If, by any act of his, the actor intentionally causes a third person to enter land, he is as fully liable as though he himself enters. Thus, if the actor has commanded or requested a third person to enter land in the possession of another, the actor is responsible for the third person's entry, if it be a trespass. This is an application of the general principle that he who intentionally causes another to do an act is under the same liability as though he himself does the act in question.' Restatement, Torts, #158, comment (i).

The liability of defendant Company for the trespass involved in the digging of the hole on plaintiff's land without his knowledge or consent being thus established, does such liability extend to the personal injuries sustained by him as the result of his falling into the hole? The authorities are clear to the effect that where the complaint is for trespass to land the trespasser becomes liable...

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