Moser v. Philadelphia, H. & P. R. Co.

• Citation: 82 A. 362,233 Pa. 259
• Decision Date: 02 January 1912
• Docket Number: 260
• Parties: Moser v. Philadelphia, Harrisburg & Pittsburg Railroad Company, Appellant
• Court: Pennsylvania Supreme Court

82 A. 362

233 Pa. 259

Moser v. Philadelphia, Harrisburg & Pittsburg Railroad Company, Appellant

No. 260

Supreme Court of Pennsylvania

January 2, 1912

[Copyrighted Material Omitted]

Argued April 25, 1911

Appeal, No. 260, Jan. T., 1910, by defendant, from judgment of C.P. Cumberland Co., Sept. T., 1908, No. 177, on verdict for plaintiff in case of Margaret Moser v. Philadelphia Harrisburg & Pittsburg Railroad Company. Reversed.

Trespass to recover damages for an alleged discrimination in the matter of siding facilities. Before SADLER, P.J.

From the record it appeared that on October 15, 1890, the defendant, the Philadelphia, Harrisburg & Pittsburg Railroad Company, leased its railroad extending from Harrisburg to Shippensburg to the Philadelphia & Reading Railway Company for the term of 999 years, and "also agreed to lease to the said lessee all railroads hereafter by it acquired." The lessee thereafter operated the road. On April 17, 1905, the plaintiff, Margaret Moser, was the owner of a tract of land containing deposits of limestone with opened quarries and kilns built for the manufacturing of lime. On the date mentioned Miss Moser purchased a tract of land between the limestone land and the railroad right of way. In 1906, the plaintiff filed a bill in equity both against the lessee and the lessor railroads to compel the construction of a siding, and a decree was entered in her favor directing the defendants to build the siding demanded. The bill also claimed damages under the Act of June 4, 1883, P.L. 72, but the court declined to award damages. In 1908, the present action was brought against the lessor company alone to recover damages for an alleged unreasonable discrimination. The evidence also showed that a siding was constructed for the defendant by the lessee company in 1908 and that the plaintiff voluntarily paid therefor the sum of $969.08. This siding was built in May, 1908, and paid for on June 5, 1908.

The defendant presented the following points:

2. The evidence in this case failed to show that any application was ever made by the plaintiff or her agents to the defendant for the installation of a siding in connection with her land. Answer: In the light of the record of the bill in equity filed to No. 4, October Term, 1906, and the findings of fact and conclusions of law, and the decree, the point is refused. [1]

4. The defendant is not liable to the plaintiff in this action for or on account of the cause of action set forth in the plaintiff's statement. Answer: Refused. [2]

5. The defendant is not liable to the plaintiff in this action for all or any part of the cost of the installation of the siding in connection with her land by the Philadelphia & Reading Railway Company. Answer: The siding does not connect land of the plaintiff with the Philadelphia & Reading Railway Company, but with the Philadelphia, Harrisburg & Pittsburg Railroad Company. If the jury find that there was an unlawful discrimination by the defendant, under the evidence, the plaintiff may recover for the additional cost of the siding put in in 1908 and paid for by her, above that which it would have cost to construct a similar one in 1906, when she applied for the same. [3]

6. The evidence in this case shows that all and every application or demand made by the plaintiff for the installation of a siding in connection with her land was made to the Philadelphia & Reading Railway Company, and that the cost of the installation of that portion of the siding on defendant's right of way was paid to the said Philadelphia & Reading Railway Company, and that no portion of the same was paid by her to the defendant company. Answer: We say it was immaterial to whom the plaintiff paid the money for the construction of the siding. The question is, how much did she pay; how much did it cost, and was that cost in excess of what it could have been constructed for in 1906? The record in the bill in equity shows that the present defendant was in default in not putting in the siding. [4]

7. The defendant is not liable to the plaintiff in this action for treble damages under the act of June 4, 1883, for any injury which may have been suffered by her on account of the failure or refusal of the lessee of the defendant railroad to install the siding involved in this case. Answer: We leave to the jury to determine whether there was an unlawful discrimination on part of the defendant. If they so find, treble damages may be given. [5]

8. The plaintiff has failed in this case to show by any clear or definite proof the amount of damages, if any, she may have suffered by reason of the noninstallation of a siding in connection with her land as would entitle her to recover treble damages under the act of June 4, 1883. Answer: Refused. [6]

9. Any right that the plaintiff may have to the recovery of all or any portion of the cost of the installation of the siding upon the defendant's land, and the connection of the same with that portion of the siding upon her land, must be enforced by a proper application to the court of common pleas of Cumberland county, sitting in equity, in the suit filed to No. 4, October Term, 1906. Answer: The greater portion of the damages claimed in this action are for outlays made by the plaintiff, by reason of alleged defaults of the defendant since the bill in equity was disposed of, and a decree entered. This prayer is refused. The right to sue for the other damages was expressly reserved in the equity proceeding. [7]

10. The defendant is not estopped by the record filed to No. 4, October Term, 1906, and offered in evidence, from making a defense to the cause of action set forth in the plaintiff's statement filed in this case. Answer: The defendant is not estopped from contesting the amount of damages the plaintiff seeks to recover in this action by reason of the bill filed to No. 4, October Term, 1906, and the decree entered thereon. [8]

12. The suit in equity to No. 4, October Term, 1906, between the plaintiff in the present action and the Philadelphia, Harrisburg & Pittsburg Railroad Company, involved the alleged discrimination in furnishing a private siding to the plaintiff on the Philadelphia, Harrisburg & Pittsburg Railroad Company, a facility under the act of June 4, 1883, for the transportation of property. It is undisputed that at the date of said suit and decree, the Philadelphia & Reading Railway Company was the lessee of said Philadelphia, Harrisburg & Pittsburg Railroad Company, and under the covenants of said lease, dated October 13, 1890, and duly recorded in the recorder's office at Carlisle, Pa., in Miscellaneous Record Book No. 11, page 270, said lessee undertook to obligate itself to furnish all such facilities. The Philadelphia, Harrisburg & Pittsburg Railroad Company could therefore not be guilty of discriminating against the plaintiff, and this action being against the Philadelphia, Harrisburg & Pittsburg Railroad Company alone, the plaintiff cannot recover. Answer: We refuse to hold that under the lease of the Philadelphia, Harrisburg & Pittsburg Railroad Company to the Philadelphia & Reading Railway Company that the former was relieved of its obligations to furnish sidings to shippers, certainly not in view of the decree made in this case on bill filed to No. 4, October Term, 1906. While it may be conceded to be binding between the lessor and the lessee, yet not necessarily as to the public at large. [9]

13. The Act of June 4, 1883, P.L. 72, cannot apply to a lessor under the terms of the lease made between the Philadelphia, Harrisburg & Pittsburg Railroad Company and the Philadelphia & Reading Railway Company. It only can be made to apply to an operating road required under the law to make and furnish due and reasonable charges and facilities in the transportation of property without discrimination. Answer: Under the evidence, including the decree under bill in equity filed to No. 4, October Term, 1906, we cannot affirm this point. [10]

14. Under all the evidence in this case the verdict must be for the defendant. Answer: Refused. [11]

Verdict and judgment for plaintiff for treble damages amounting to $2,210.28. Defendant appealed.

Errors assigned among others were (1-11) above instructions, quoting them.

The judgment is reversed.

Conrad Hambleton, with him John W. Wetzel, for appellant. -- The defendant having leased its railroad prior to the cause of action, there can be no recovery against it for an act of the lessee, in discriminating in the furnishing of rates or facilities: Pinkerton v. Traction Co., 193 Pa. 229; Caruthers v. R.R. Co., 59 Kan. 629.

The character of injuries set up by the plaintiff are not such as are contemplated by the act of 1883: Hoover v. R.R. Co., 156 Pa. 220; Wright v. R.R. Co., 32 Pa.Super. 5.

There can be no recovery for any part of the cost of siding, except through a reformation of the decree entered to No. 4, October Term, 1906: Head v. Maloney, 111 Pa. 99; Monongahela Nav. Co. v. Wood, 194 Pa. 47; Peebles v. Pittsburg, 101 Pa. 304; De La Cuesta v. Ins. Co., 136 Pa. 62-78, 658, 664.

Joseph P. McKeehan, with him S. B. Sadler, for appellee. -- An adjoining landowner has as such, a special and peculiar right to a railroad siding. In estimating damages for land taken, a railroad takes credit for the benefit conferred incidental to this right. No credit can be taken for benefits incident to rights enjoyed by the public: Moser v. P., H. & P.R.R. Co. et al., 35 Pa. C.C. Rep. 49; Pittsburg & L.E.R.R. Co. v. Robinson, 95 Pa. 426; Reeser v. P. & R. Ry. Co., 215 Pa. 136; 64 A. Repr. 376; Olanta Coal M. Co. v. B.C.R.R. Co., 158 Fed. Repr. 36; 85 C.C.A. 148.

When defendant company built its road and took credit for this right, the right became annexed and appurtenant...