Prager v. Gordon

• Decision Date: 15 December 1921
• Docket Number: 81-1921
• Citation: 78 Pa.Super. 76
• Parties: Prager v. Gordon, Appellant (No. 1)
• Court: Pennsylvania Superior Court

78 Pa.Super. 76

Prager v. Gordon, Appellant (No. 1)

No. 81-1921

Superior Court of Pennsylvania

December 15, 1921

Argued October 10, 1921

Appeal by defendant, from judgment of C. P No. 5, Phila. Co.-1917 No. 2409, on verdict for plaintiff in the case of Leah Prager, by her next friend and husband Joseph Prager, and Joseph Prager in his own right, v. Benjamin L. Gordon.

Trespass to recover damages for personal injuries. Before Martin, P J.

The facts are stated in the opinion of the Superior Court.

Verdict for plaintiff, Leah Prager, for $ 800 and for plaintiff Joseph Prager, for $ 200 and judgment thereon. Defendant appealed.

Errors assigned were the charge of the court, answers to points and refusal of defendant's motion for judgment non obstante veredicto.

Affirmed.

Lewis Lawrence Smith, and with him George V. Strong, for appellant. -- The evidence of negligence on the defendant's part was not sufficient to take the case to the jury: Flanigan v. McLean, 267 Pa. 553; Kemmler v. Penna. Co., 265 Pa. 212; Erbe v. P.R. T. Co., 256 Pa. 567; Bruggeman v. York, 254 Pa. 430; Freedman v. Wager et al., 73 Pa.Super. 180.

The defendant was not individually liable in damages for negligence in his capacity as trustee: Yerkes v. Richards et al., 170 Pa. 346; Eisenbrey v. Penna. Co., 141 Pa. 566; Prinz v. Lucas, 210 Pa. 620.

Edward Tolen, for appellee. -- The case was for the jury: Shaffer v. Harmony Boro., 204 Pa. 339; Esher v. Mineral R. R. & Mining Co., 28 Pa.Super. 387; Susko v. Harleigh-Brookwood Coal Co., 244 Pa. 339; Smith v. Standard Steel Car Co., 262 Pa. 550.

Before Orlady, P. J., Porter, Henderson, Head, Trexler, Keller and Linn, JJ.

OPINION

TREXLER, J.

Morris Cohen the owner of the house, No. 774, South Fifth Street, rented three rooms on the second floor to Joseph Prager. There were six tenants in the house. In the rear of the third floor, and superimposed on the roof was a platform which all the tenants used as a place to hang out their wash. Steps were provided so that they could have easy access thereto. Cohen having died, in his last will and testament appointed the defendant among others trustee and executor. Mrs. Prager went upon the platform for the purpose of hanging out wash, trod on a board which gave way under her weight, and as a result was severely injured. It was shown that the platform was in a shaky condition; that the defendant had knowledge thereof; that he had stated that he would fix it. Under the evidence submitted, the jury could find the accident occurred in a place provided by the landlord for the convenience of the tenants, a place that was not embraced in the part of the property leased to the tenants but remained under his control. It was apparently an extra construction particularly designed for the convenience of the occupants. The landlord therefore was required to keep it in ordinarily safe condition: Lewin v. Pauli, 19 Pa.Super. 447. It was for the jury to determine whether the accident would have occurred if the landlord had used proper care: Levinson v. Myers, 24 Pa.Super. 481; Brown v. Towanda Boro., 24 Pa.Super. 378; Fisher v. Ruch, 12 Pa.Super. 240; Silver Costume Co. v. Passant, 71 Pa.Super. 252.

As to the question of the contributory negligence of Mrs. Prager, this was also a matter for the jury. Under all the circumstances, was the platform in such a condition as should have prevented a reasonably prudent person occupying part of the premises from using it? This matter was properly submitted to the jury by the learned trial judge.

" Was the trustee individually liable for negligence in his representative capacity?" It seems to be well settled that the personal representatives is liable in his individual liability for torts committed by him. For any cause of action arising through the negligence of an executor or trustee in managing an estate such executor or trustee is personally liable, and the action must be brought against him in his individual capacity. Certainly he has no authority committed to him in his official capacity to do wrong, and because the act is wrongful, it follows it is in excess of his authority. " An estate is not liable for the tort of an executor" : Braman's App., 89 Pa. 78, (opinion of the lower court); Moulson's Est., 1 Brewster 296; Morgan's Est., 2 Pa. Dist. 816; Gordon v Robinson, 1 Browne 325. There are a large number of cases in other jurisdictions. They are cited in support of the above-stated principal of law in 24 C.J. 128. See also Thompson Commentaries on Negligence, volume 1, section 71. In Prinz v. Lucas, 210 Pa. 620, cited by appellant, the deed of trust expressly provided that the trustees should not be liable for injury, and therefore the court held that the risk should be assumed and borne by the estate. In Eisenbrey v. Penna. Co., 141 Pa. 566, the...