Pennsylvania R. Co. v. Bowers

• Decision Date: 11 February 1889
• Docket Number: 209
• Citation: 16 A. 836,124 Pa. 183
• Parties: PENNSYLVANIA R. CO. v. MARY BOWERS
• Court: Pennsylvania Supreme Court

16 A. 836

124 Pa. 183

PENNSYLVANIA R. CO. v. MARY BOWERS

No. 209

Supreme Court of Pennsylvania

February 11, 1889

Argued January 29, 1889

ERROR TO THE COURT OF COMMON PLEAS NO 1 OF PHILADELPHIA COUNTY.

No. 209 July Term 1888, Sup. Ct.; court below, No. 656 December Term 1886, C.P. No. 1.

On January 27, 1887, an action in case for negligence was brought by Mary Bowers against the Pennsylvania Railroad Co. to recover damages suffered by the death of her husband Thomas L. Bowers, alleged to have been caused by the negligence of the defendant company's employees. Issue.

At the trial on January 11, 1888, it was shown that the said Thomas L. Bowers, by trade a carpenter and builder, was killed by being struck by a train at Comly street crossing, near Wissinoming station on defendant's road, about 6:45 P.M on February 26, 1886.

The plaintiff's case having closed, the defendant put in evidence, inter alia, an extract from the minutes of the board of directors of the company, showing that at a meeting of said board, held at the office of the company, at Philadelphia, on April 15, 1868, an act entitled "An act relating to railroad companies and common carriers, defining their liabilities and authorizing them to provide means of indemnity against loss of life and personal injury," approved April 4, 1868, P.L. 58, was read, and on motion it was resolved that the said act of assembly "as above recited, be, and the same is hereby accepted by the Pennsylvania Railroad Company."

At the close of the case upon the evidence, BREGY, J., instructed the jury, and then answered the points presented as follows to wit:

The plaintiff requests the court to charge:

1. That the acceptance of the provisions of the act of April 4, 1868 by the board of directors of the defendant corporation, does not prevent the plaintiff from recovering a verdict in excess of $5,000, and that the jury should give a verdict for such sum as the deceased would probably have earned by his intellectual or bodily labor in his business or profession during the residue of his life and which would have gone for the benefit of his widow, without regard to the provisions of said act of April 4, 1868.

Answer: I affirm that point.

2. That the limitation of liability for damages, claimed by defendant under and by virtue of the act of April 4, 1868, has been revoked or avoided, as to the defendant corporation, by the provisions of the twenty-first section of article III. of the constitution of Pennsylvania, known as the new constitution.

Answer: I will affirm that.

The defendant requests the court to charge:

* * *

6. In no event may a verdict exceed the sum of $5,000.

Answer: Refused.

The jury returned a verdict in favor of the plaintiff for $14,500 damages. On June 20, 1888, a rule for a new trial was made absolute unless the plaintiff should release the damages recovered above the sum of $10,000, by a release to be filed within ten days; if such release be filed, rule discharged. A release having been filed within the time, judgment was entered for the plaintiff for $10,000, when the defendant company took this writ, assigning as error, inter alia:

3. The refusal of defendant's point.

4, 5. The affirmance of plaintiff's points.

Judgment affirmed.

Mr. Geo. Tucker Bispham, for the plaintiff in error:

1. In Hayes v. Commonwealth, 82 Pa. 523, decided in 1876, the law was declared to be that a charter of a corporation is such a contract as cannot be impeached by state authority except on proper cause shown, and that it was not the intention of the constitutional convention, even if it had the power committed by the amendment of 1857 to the legislature to alter the charters of corporations, to do so by virtue of any provision of the constitution itself. Then came the case of Penn. R. Co. v. Langdon, 92 Pa. 21, in which it was decided that the first part of § 2 of the act of April 4, 1868, P.L. 58, which contains the provision under consideration, was not avoided by § 21, article III., of the constitution. Moreover, it was held, that inasmuch as the Penn. R. Co. had formally accepted the provisions of the act of 1868, those provisions had become part of its charter, which was left in precisely the same condition as the new constitution found it.

2. But in Lewis v. Hollahan, 103 Pa. 425, this court apparently changed somewhat the views it had entertained and expressed in Penn. R. Co. v. Langdon, and ruled that § 21, article III., of the constitution did avoid the whole of § 2, of the act of 1868, so far as non-accepting companies were concerned. It is to be observed, however, that the court did not pass upon the question as to the effect of the constitutional provision upon the act quoad companies which had not accepted its provisions prior to the adoption of the constitution, for that question did not arise. Moreover, not only did that question not arise, but the court expressly approved the decision in Penn. R. Co. v. Langdon.

3. On February 15, 1886, Penn. R. Co. v. Duncan, 111 Pa. 352, was decided, and it has been argued that inasmuch as that case ruled that the company was responsible under the constitutional provision for property injured as well as for property taken, it must be inferred that in so deciding the court intended to depart from the ruling in Penn. R. Co. v. Langdon. But it is submitted that this is an error, for when the proposition, viz.: whether Penn. R. Co. v. Langdon was still to be considered as the law, came before the court in Philadelphia etc. R. Co. v. Conway, 112 Pa. 511, the idea that Penn. R. Co. v. Langdon was overruled was distinctly repudiated. The doctrine of Penn. R. Co. v. Langdon has been affirmed in the recent case of Williamsport Pass. Ry. Co.'s App., 120 Pa. 1. In that case, where it was attempted to take away an express right granted to a corporation in its charter, by making it subject to a provision of the constitution of 1874 and the act of May 23, 1878, contradictory of that grant, this court said: "It has been said by this court on more than one occasion that the constitution of 1874 did not ipso facto repeal charters:" citing Hayes v. Commonwealth and Penn. R. Co. v. Duncan.

4. Further: Penn. R. Co. v. Duncan is distinguishable from the present case, in that here there was an express contract between the company and the state by which the former accepted the provisions of the act of 1868; whereas, in the former case the provisions of the law relied upon were held to be simply the general provisions in existence at the time the company bought the state works. There was, therefore, in that view of the matter, no contract other than that which grew out of the charter: Williamsport Pass. Ry. Co.'s App., 120 Pa. 1. Moreover, in Penn. R. Co. v. Duncan, the company sought to avail itself of a rule of damages which, it was held, the constitution had expressly repealed as to all corporations which could exercise the right of eminent domain; whereas here the constitutional clause simply repeals the act of 1868, but does not say expressly that the repeal shall affect a contract with a company which had accepted the act. The language of the constitution is, therefore, satisfied by preventing any future acceptance of the statute, and at the same time contract rights are preserved.

5. But, supposing for the sake of the argument, that the convention did intend that $21 of article III. of the constiution should ipso facto avoid charters: the question then arises, had the convention the power thus to alter or repeal corporate charters? It is contended that the state did acquire the right by virtue of the provisions of the act of May 3, 1855, P.L. 423, and of the fourth constitutional amendment of 1857. But in the act of 1855, the power to annul is expressly conferred upon the legislature; the right to waive the exercise of that power is expressly conferred upon the same body, and it is the opinion of the same body which is to determine whether or not the power ought to be exercised in any given case. The amendment of 1857 is to the same effect. In that, as well as in the act of 1855, the legislature is the channel through which the people are to act in the matter of the repeal or modification of charters. "A constitutional convention is not the legislature, in the meaning of that amendment:" Hays v. Commonwealth, 82 Pa. 523; Williamsport Pass. Ry. Co.'s App., 120 Pa. 1.

Mr. P. F. Rothermel, for the defendant in error:

I. That the limitation of liability claimed by the defendant company by virtue of their alleged acceptance of the act of 1868, has been avoided by § 21, article III. of the constitution clearly appears from the following cases: Penn. R. Co. v. Langdon, 92 Pa. 34; Lewis v. Hollahan, 103 Pa. 425; Penn. R. Co. v. Duncan, 111 Pa. 352. In Penn. R. Co. v. Langdon, it was assumed that the defendant had accepted the provisions of the act of 1868, and the court held that § 21 of article III. did not avoid the act for two reasons: (1) Because the constitutional provision "spoke for the future and avoided no existing acts;" (2) because, by accepting the provisions of the act, the company had made it a part of its charter, and hence it became a contract with the state which the constitution of the United States protected. Lewis v. Hollahan decided that the act of 1868 was a general law applying to non-accepting as well as to accepting corporations, and that § 21, article III., was applicable to existing as well as to future legislation and did avoid the act of 1868, thus destroying the first of the two grounds upon which Penn. R. Co. v. Langdon rested. The other ground, to wit, that the acceptance of the act of 1868 by the corporation made it a part of its charter rights of which it could not be deprived, was...