Minnich v. Lancaster & Lititz Electric Ry. Co.

• Decision Date: 13 October 1902
• Docket Number: 32
• Citation: 53 A. 501,203 Pa. 632
• Parties: Minnich, Appellant, v. Lancaster & Lititz Electric Railway Company
• Court: Pennsylvania Supreme Court

53 A. 501

Minnich, Appellant, v. Lancaster & Lititz Electric Railway Company

203 Pa. 632

No. 32

Supreme Court of Pennsylvania

October 13, 1902

Argued May 20, 1902

Appeal, No. 32, Jan. T., 1902, by plaintiff, from order of C.P. Lancaster Co., Aug. T., 1895, No. 112, refusing to take off nonsuit in case of Zacharias Minnich v. Lancaster &amp Lititz Electric Railway Company, The Lancaster Railway Construction Company and the Pennsylvania Traction Company. Reversed.

Trespass to recover damages for building a street railway in front of plaintiff's property without his consent, for injuries to crops and fences, and for injuries resulting from the alleged reckless operation of street cars. Before LANDIS, J.

At the trial the court entered a compulsory nonsuit on the ground that a joint tort had not been proved as to all three of the defendants.

Error assigned was order refusing to take off nonsuit.

The judgment is reversed with a procedendo.

L. N Spencer and H. M. North, for appellant. -- The Lancaster & Lititz Electric Railway Company had no right to enter into a contract for the construction of a railway upon plaintiff's property, and when it did it became a joint trespasser with each and all of those engaged in such construction, acting in pursuance of its authority or for its benefit: Ellis v. Sheffield Gas Consumers' Co., 2 Ellis & Blackburn, 767; Smith v. Simmons, 103 Pa. 32; Edmundson v. Pittsburg, etc., R.R. Co., 111 Pa. 316; Wray v. Evans, 80 Pa. 102; Allen v. Willard, 57 Pa. 374; Pickard v. Smith, 100 Eng. C.L. Rep. 468; Williams v. Fresno Canal, etc., Co., 96 Cal. 14; Robbins v. Chicago, 4 Wall. 657.

The Lancaster & Lititz Electric Railway Company and the Pennsylvania Traction Company are jointly liable with the Lancaster Railway Construction Company for the injury to plaintiff's property if they contributed as actors, directors, requestors, aiders or abettors of the wrong, or have since the commission of the wrong assumed the benefit of the wrongful act: McCloskey v. Powell, 138 Pa. 383; Gillingham v. Clark, 1 Phila. 51; Welsh v. Cooper, 8 Pa. 217; McGill v. Ash, 7 Pa. 397; St. Paul Water Co. v. Ware, 16 Wall. 566; Magee v. Penna. Schuylkill Valley R.R. Co., 13 Pa.Super. 187; McBride v. Scott, 125 Mich. 517 (84 N.W. 517); Gilson v. Wood, 20 Ill. 37; Develing v. Sheldon, 83 Ill. 390; Northern Trust Co. v. Palmer, 171 Ill. 383 (49 N.E. Repr. 553) (13 L.R.A. 219); Dundas v. Muhlenberg, 35 Pa. 351; Dempsey v. Chambers, 154 Mass. 330 (28 N.E. Repr. 279); Tiffin v. McCormack, 34 Ohio 638; Southern Ohio R.R. Co. v. Morey, 47 Ohio 207 (24 N.E. Repr. 269).

The court below seemed to stick on the question as to whether or not the Lancaster & Lititz Electric Railway Company can be held for all the damages to his land suffered by plaintiff, caused by the building of the railway. The rule which controls in such cases has been laid down by this court: Frantz v. Lenhart, 56 Pa. 365; Pittsburg, etc., Pass. Ry. Co. v. Donahue, 70 Pa. 119; Whitney v. Backus, 149 Pa. 29; Fisher v. Monongahela Connecting Ry. Co., 131 Pa. 292; Bucklin v. Davidson, 155 Pa. 362.

At the trial and the argument in the court below, defendant's counsel seemed to rely upon Wiest v. Electric Traction Company, 200 Pa. 148. The facts in that case are in no way analogous to this case.

The letting of the contract for the building of the railway by the Pennsylvania Traction Company, and the supervision of the construction by the engineer, as its employee, the building on plaintiff's lands being an unlawful act, was the act not only of itself but also the act of the Lancaster & Lititz Electric Railway Company, the Pennsylvania Traction Company being at the time the owner of all the capital stock of the Lancaster & Lititz Electric Railway Company.

The act of all of the stockholders of a corporation, where the act is unlawful, is the act of the corporation itself: State v. Standard Oil Co., 49 Ohio 137 (30 N.E. Repr. 279); People v. North River Sugar Refining Co., 121 N.Y. 582 (24 N.E. Repr. 834); Clark on Corporations, p. 9.

W. U. Hensel, with him Coyle & Keller, for appellee. -- The essential question in this case is not (1) whether there can be a recovery against defendants joined as joint tort feasors where the evidence fails to show a joint tort; not is it (2) whether or not if two or more defendants be sued jointly for a tort and the evidence is not sufficient to hold them all, there may be a discontinuance as to some and the trial proceed as to the other.

For if the first of these propositions were in dispute here very recent decisions of this court would effectually answer and settle it: Howard v. Union Traction Co., 195 Pa. 391; Dutton v. Lansdowne Borough, 198 Pa. 563; Wiest v. Electric Traction Co., 200 Pa. 148; Hart v. Allegheny County Light Company, 201 Pa. 234.

It is a fundamental rule that, where one who contracts to perform a lawful service for another, is independent of his employer in all that pertains to the execution of the work, and is only subordinate in effecting results in accordance with the employer's design, he is an independent contractor, and, in such case, the contractor alone, and not the employer, is liable for damages caused by the contractor's negligence in the execution of the work: Smith v. Simmons, 103 Pa. 32; Edmundson v. Pittsburg, McKeesport & Youghiogheny R.R. Co., 111 Pa. 316.

Before MITCHELL, DEAN, FELL, MESTREZAT and POTTER, JJ.

OPINION

MR. JUSTICE FELL:

The error in practice corrected by the decisions in Howard v Union Traction Co., 195 Pa. 391, and Dutton v. Lansdowne Borough, 198 Pa. 563, was that of joining two or more defendants between whom there had been no concert of action, and under the allegation of a joint tort proving the separate torts of each defendant, and leaving the court or jury to select the party legally responsible. This left the case of the defendant against whom a cause of action was shown prejudiced by the proof of the wrongful action of others with whom he had no connection. Referring to these decisions in Wiest v. Electric Traction Co., 200 Pa. 148, it was said by our Brother POTTER: "Joining several parties as defendants without regard to the question of the tort being joint does no doubt relieve the plaintiff of the responsibility of finding out, before bringing his action, who is justly chargeable with the wrong causing the injury, as it leaves that question to be developed at the trial. The plaintiff may profit by the contention which naturally arises among the defendants, in which each seeks to charge the other. But such a course does not tend to an orderly trial, nor the attainment of justice. . . . We are aware that it is thought that the effect of a misjoinder may be cured by taking a verdict against one defendant only, and authority is not lacking to support this view. But this remedy is not adequate. The mischief in unwarrantably joining as defendants parties who are not in fact joint wrongdoers, is in the confusion and disorder resulting at the trial, and the increased difficulty in arriving at a just verdict. It is not necessary to sue all the parties guilty of committing a tort; for joint wrongdoers are liable jointly and severally. And where a joint suit is brought against a number of ...