Kosco v. Hachmeister, Inc.
| Decision Date | 30 June 1959 |
| Parties | Carl M. KOSCO, Executor of the Estate of John Kosco, deceased, and Carl M. Kosco, v. HACHMEISTER, INC., a Corporation, and Fay Earhart Dobson, Executrix of the Estate of E. H. Dobson, deceased (two cases). Helen DRWINGA v. HACHMEISTER, INC., a Corporation, and Fay Earhart Dobson, Executrix of the Estate of E. H. Dobson, deceased (two cases). |
| Court | Pennsylvania Supreme Court |
Alice D. Tobias, Pittsburgh, for Fay Earhart Dobson executrix.
John G. Koedel, Pittsburgh, for Hachmeister, Inc.
John A. Metz, Jr., David Friedman, Guy L. Warman Joseph B. Mitinger, metz,
Cook Hanna & Kelly, Pittsburgh, for appellees.
Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO, BENJAMIN R. JONES, COHEN, BOK and McBRIDE, JJ.
The basic question in this case has once been resolved, in Lugin v. Dobson & Hachmeister Co., 1954, 376 Pa. 620, 104 A.2d 95, when a decree awarding damages to the plaintiff was affirmed.
The property of the present plaintiff Drwinga is next to that of Lugin, and Kosco's lots are the fourth and fifth away on the other side. Beyond a reminder, it is unnecessary to repeat all of the facts. There is a group of homes in McKees Rocks, near Pittsburgh, set on a steep hillside between Stowe Avenue and Island Avenue. Downhill and across Island Avenue is the Hachmeister property, from which Dobson, its contractor, removed ten thousand tons of earth in a grading operation during December, 1949.
The Chancellor found that within a month after the excavation an earth movement began toward the excavation along the face of the Hachmeister embankment, affecting not only the bed and sidewalks of Island Avenue but the plaintiffs' properties as well. Their houses so cracked and buckled that they had to abandon them in 1952. The Chancellor also found that the movement was triggered by the defendants' negligently removing lateral support from the hillside, with the result that a small landslide occurred. The real issue was whether the causation was a landslide or a creep, which is the slow and imperceptible downhill movement of land responding, as it does on any hillside in the world, to the force of gravity: creep is not great enough to damage structures built on the land.
Experts testified for both sides. The evidence given by Doctors Gotolski and Ridge, for the plaintiffs, covered about 1,400 pages of the original record and 230 pages of the printed record. These men were examined and cross-examined on every conceivable phase of the case: the location of the heel and toe of the earth movement, the depth of the slide plane, the rate of creep, the effect of pore water pressure and of precipitation, the kind of soil and detritus, the cause of upward buckling, the geological formation of the area, and the like. Both men said flatly that the damage to the properties of the plaintiffs was caused by a landslide let loose by the excavation on the Hachmeister land.
Defendants argue that the physical facts are incontrovertible, but this cannot be so when they must be established by one of two opposing versions. Only when the basic facts are the same under both versions can they be said to be beyond controversy. The fact that the Kosco houses buckled upward, which defendants say could not happen in a landslide, was explained by Dr. Ridge's testimony that there was a series of slides higher up the hill set off by the first slide at the excavation: one of these might well ride over lower ground and cause an upthrust.
While the earth movement, cracked walls, upthrust floors, etc. are immutable facts in the sense that they happened and were plainly to be seen, their explanation lies in science rather than in lay experience and depends on oral testimony by experts. 'No fact based on oral testimony * * * ever possesses the character of legal incontrovertibility until it receives the imprimatur of a jury's acceptance': Majewski v. Lempka, 1935, 321 Pa. 369, 183 A. 777, 779; Fisher v. Hill, 1949, 362 Pa. 286, 66 A.2d 275.
The findings of the Chancellor, based on ample evidence and confirmed by the Court en banc, have the weight of a jury's verdict: De Joseph v. Zambelli, 1958, 392 Pa. 24, 139 A.2d 644; Willwerth v. Dunlap, 1958, 391 Pa. 12, 137 A.2d 269.
Aside from liability, the only questions raised have to do with certain items of damage in the awards to the plaintiff Kosco. There is no dispute over the amounts or their support by competent evidence.
John and Mary Kosco owned the fee to 1219-1221 Island Avenue and the hotel built on the property. Carl M. Kosco, their son, was tenant of this property under a lease running from May, 1949, to April 30, 1954: he held a restaurant liquor license and operated the hotel, restaurant, and bar.
John and Mary Kosco died after suit was begun, and it devolved on Carl M. Kosco as Executor of his father's will. Hence this plaintiff represents the claim of the owners as their Executor and his own claim as tenant.
Defendants do not question the propriety of the Estate's claim for destruction of the building. They dispute certain other items on the ground that they were not specially pleaded, but we regard them as direct and general elements of damage and hence recoverable, under Parsons Trading Co. v. Dohan, 1933, 312 Pa. 464, 167 A. 310, and Klauder v. Cregar, 1937, 327 Pa. 1, 192 A. 667.
The value of the building at the time the slide began was the proper measure of damage, rather than the difference in value before and after, Durante v. Alba, 1929, 266 Pa. 444, 109 A. 796, 9 A.L.R. 485; Jones v. Monroe Electric Co., 1944, 350 Pa. 539, 39 A.2d 569; Capri v. Jafolla & Mark, 1935, 119 Pa.Super. 563, 181 A. 448. This is the proper rule when the only damage is to the buildings and the realty has not been permanently injured or destroyed.
The Chancellor found that neither the land nor the building has any fair market value at present, but he did not find that the realty had been permanently injured or destroyed. He also found that the value of the property when the slide began in 1949 was $30,000, of which $27,500 represented the value of the building separate from the land. He then awarded $30,000 plus the demolition charges to Carl M. Kosco, as Executor, but under the findings and the rule in the Durante case only the value of the building should have been allowed, or $27,500, plus the demolition charges. The award must therefore be reduced by $2,500.
In his capacity as tenant, Carl M. Kosco is entitled to the value of his destroyed fixtures in the hotel and the value of his license, both of which are the direct result of the destruction of the building.
Defendants do not dispute the causation but argue, citing Pichler v. Snavely, 1951, 366 Pa. 568, 79 A.2d 227, 228, that a liquor license is not a property right but only a personal privilege. This may be admitted, but if a man has a privilege and is prevented from exercising it by another's fault, he loses value during the running period of the privilege. The cited case says that the privilege is 'often very valuable', and this is also reflected in Re Estate of Buck, 1898, 185 Pa. 57, 39 A. 821; Aschenbach v. Carey, 1909, 224 Pa. 303, 73 A. 435; In re Ryan's Estate, 1953, 375 Pa. 42, 99 A.2d 562; O'Neill v. Keegan, 1954, 376 Pa. 606, 103 A.2d 909; Savitsky v. Parulis, 1954, 378 Pa. 140, 106 A.2d 580. The fact that a license may not be assigned without the permission of the State Liquor Board and that it does not become an asset of a licensee's estate when he dies merely restricts the market but does not prevent the privilege from having value.
Appellants challenge the award of $680, representing two years' fees to keep the liquor license alive until the end of plaintiff's lease. Since he also asks for profits based on the past experience of the business, it is fair to say that since the profits could not have been made without a...
To continue reading
Request your trial