Little Schuylkill Navigation Co. v. Richards's Administrator

• Decision Date: 03 February 1868
• Citation: 57 Pa. 142
• Parties: Little Schuylkill Navigation, Railroad and Coal Company <I>versus</I> Richards's Administrator.
• Court: Pennsylvania Supreme Court

Page 142

57 Pa. 142

Little Schuylkill Navigation, Railroad and Coal Company versus Richards's Administrator.

Supreme Court of Pennsylvania.

January 24, 1868.

February 3, 1868.

January 24th 1868.

Before THOMPSON, C. J., READ, AGNEW and SHARSWOOD, JJ. STRONG, J., at Nisi Prius

Error to the Court of Common Pleas of Schuylkill county: No. 60, to January Term 1868.

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F. B. Gowen and J. Bannan (with whom was T. R. Bannan), for plaintiffs in error.—A landlord is not liable for the torts of his tenant, unless committed by his authority: Taylor on Landlord and Tenant, § 175; Offerman v. Starr, 2 Barr 394; Earl v. Hall, 2 Metc. 353. Every person is liable only for his own acts or the acts of others under his direction, or of others acting jointly or in concert with him: Hilliard on Torts 441; Addison on Wrongs 106, 107, 159; Hilliard on Remedies for Torts 178; Partenheimer v. Van Order, 20 Barb. 479; Buddington v. Shearer, 20 Pick. 477; Auchmutz v. Haen, 1 Denio 495; Van Steenburg v. Tobias, 17 Wend. 562; Adams v. Hall et al., 2 Verm. 9; Russel v. Tomlinson et al., 2 Conn. 206; Williams v. Sheldon, 10 Wend. 654; Bard v. Yohn, 2 Casey 482; Klauder v. McGrath, 11 Id. 128.

There is a great distinction between cases of concurring negligence of two strangers, and several and distinct trespasses by different persons not acting in concert: Colegrove v. The New York and Harlem and The New York and New Hampshire Railroad Companies, 20 N. Y. Rep. 492; Stone v. Dickinson, 5 Allen 29.

Calculations from items of an account may be sent out with the jury, but not statements of damages based on witnesses' estimates: Commonwealth v. Lebo, 13 S. & R. 175; Frazier v. Funk, 15 Id. 26; Morrison v. Moreland, Id. 61; Hamilton v. Glenn, 1 Barr 340; Hall v. Rupley, 10 Id. 231; Kline v. Gundrum, 1 Jones 242; McKelvy v. De Wolfe, 8 Harris 374; Spence v. Spence, 4 Watts 165; Woods v. Waud, 3 Exch. 748.

F. W. Hughes, with whom were G. E. Farquhar and F. Hoffman, for defendant in error.

The opinion of the court was delivered, February 3d 1868, by

AGNEW, J.

All the assignments of error, from the 4th to the 11th inclusive, involve substantially the same question, and may be considered together. The plaintiff's intestate was the owner of a dam and water-power upon the Little Schuylkill river. In process of time, from 1851 to 1858, the basin of the dam became filled with the coal-dirt, washed down by the stream from the mines above, of several owners, upon Little Schuylkill, Panther creek and other tributaries. They were separate collieries, worked independently of each other. The plaintiff seeks to charge the defendants below with the whole injury caused by the filling up of his basin. The substance of the charge and answers to points was, that if at the time the defendants were engaged in throwing the coal-dirt into the river, about ten miles above the dam, the same thing was being done at the other collieries, and the defendants knew of this, they were liable for the combined result of all the series of deposits of dirt from the mines above from 1851 till 1858. The aspects of the case were varied, by deposits being made on and along the banks of the streams, which were carried away by ordinary rains and freshets; but the above is the most direct statement of the injury alleged, and is taken therefore as the test of the principle laid down by the court. The doctrine of the learned judge is somewhat novel, though the case itself is new; but, if correct, is well calculated to alarm all riparian owners, who may find themselves by a slight negligence overwhelmed by others in gigantic ruin.

It is immaterial what may be the nature of their several acts, or how small their share in the ultimate injury. If, instead of coal-dirt, others were felling trees and suffering their tops and branches to float down the stream, finally finding a lodgment in the dam with the coal-dirt, he who threw in the coal-dirt, and he who felled the trees would each be responsible for the acts of the other. In the same manner separate trespassers who should haul their rubbish upon a city lot, and throw it upon the same pile, would each be liable for the whole, if the final result be the only criterion of liability. But the fallacy lies in the assumption that the deposit of the dirt by the stream in the basin is the foundation of liability. It is the immediate cause of the injury, but the ground of action is the negligent act above. The right of action arises upon the act of throwing the dirt into the stream — this is the tort, while the deposit below is only a consequence. The liability, therefore, began above with the defendant's act upon his own land, and this act was wholly separate, and independent of all concert with others. His tort was several when it was committed, and it is difficult to see how it afterwards became joint, because its consequences united with other consequences. The union of consequences did not increase his injury. If the dirt were deposited mountain high by the stream his dirt filled only its own space, and it was made neither more nor less by the accretions. True, it may be difficult to determine how much dirt came from each colliery, but the relative proportions thrown in by each may form some guide, and a jury in a case of such difficulty, caused by the party himself, would measure the injury of each with a liberal hand. But the difficulty of separating the injury of each from the others would be no reason that one man should be held to be liable for the torts of others without concert. It would be simply to say, because the plaintiff fails to prove the injury one man does him, he may therefore recover from that one all the injury that others do.

This is bad logic and hard law. Without concert of action no joint suit could be brought against the owners of all the collieries, and clearly this must be the test; for if the defendants can be held liable for the acts of all the others, so each and every other owner can be made liable for all the rest, and the action must be joint and several. But the moment we should...