Strohl v. Levan

• Decision Date: 06 May 1861
• Citation: Strohl v. Levan, 39 Pa. 177 (Pa. 1861)
• Parties: Strohl <I>versus</I> Levan.
• Court: Pennsylvania Supreme Court

39 Pa. 177

Strohl versus Levan.

Supreme Court of Pennsylvania.

May 6, 1861.

ERROR to the Common Pleas of Carbon county.

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H. B. Burnham, for plaintiff in error.—This action is "trespass." The summons issued was "to answer Francis Levan of a plea of trespass." The narr. has three counts, which are substantially the same, to wit: "with force and arms, &c.," and "with great force and violence," breaking the wagon of said Francis Levan, injuring, bruising, and wounding him. The allegata is trespass, which is defined to be, "An unlawful act committed vi et armis, to the person, property, or relative rights of another:" Bouv. Law Dict. p. 600; Chitty's Pleadings, vol. 1, p. 166; Legaux v. Feasor, 1 Yeates 586. The gist of the action is the immediate force connected therewith and directly applied: Smith v. Rutherford, 2 S. & R. 358.

This force must be applied directly, procured, or ordered, by the party charged, but farther than this responsibility has never been held to attach. But was the act complained of trespass at all? If the plaintiff in error is responsible, is it not for the negligence or unskilfulness of his servant? In 2 H. Blackstone 432, it was said, "It is difficult to put a case where the master could be considered a trespasser for an act of his servant, which was not done by his command." In the case of Philadelphia et al. Railway Company v. Wilt, 4 Wharton 147, the same principle is affirmed: Yerger et ux. v. Warren, 7 Casey 322. The court erred in directing the jury that the action was well brought in the form of trespass, but should have instructed the jury that "if the particular wrong complained of was done by the orders of the defendant, or with his direct assent, at the time, he was a trespasser; and that without such order or direct assent he was not liable;" that something more than mere silence was necessary to constitute such "direct assent:" Welch v. Cooper, 8 Barr 217. The evidence certainly presents no such case as authorized the court below to say to the jury that "the act was done by the defendant himself, and not by his servant:" Childerston et al. v. Hammon, assignee of Rosenberger, 9 S. & R. 68; Fisher v. Kean, 1 Watts 279; Cummings v. Cummings, 5 W. & S. 556; McGee v. Northumberland Bank, 5 Watts 32; Delaney v. Robinson, 2 Wh. 503; Baker v. Lewis, 4 Rawle 356; Work v. McClay, 2 S. & R. 415; Hershey v. Hershey, 8 Id. 333; Sampson v. Sampson, 4 Id. 329.

The matters of exception in plaintiff's third, fourth, and fifth specifications of error, are opinions and judgments of fact, or binding directions which gave the jury reason to infer that they were precluded from considering the facts, and are therefore error under the authorities before quoted. When contradictory testimony appeared in the cause, how could the court undertake its decision without trespassing upon the province of the jury?

But there was express error in saying to the jury that "It was the duty of defendant not only to allow him (plaintiff) to pass, but to have facilitated his movements in that way," when there was no request made by him for that purpose, or other evidence showing his right or desire to do so.

In Bolton v. Colder & Wilson, 1 Watts 364, it is held that "if there is not space for one traveller to pass another, that it is the duty of the other, on request made, to yield a share of the road, if practicable."

The sixth and seventh specifications of error refer to the failure of the court below to charge as desired. The court marked the points "affirmed" in form, but do not refer to them in their charge, either specially or generally, to communicate them as matter of law, in the case; but on the contrary — they have negatived the matter of the points proposed! If the points proposed were correct statements of law, the plaintiff was entitled to have them embodied in the charge of the court below, and to have had the benefit of them before the jury, in their consideration of the evidence: Shafer v. Landis, 1 S. & R. 449; Hamilton v. Minor, 2 Id. 70; Vincent v. Huff, 4 Id. 298; Noble v. McClintock, 6 W. & S. 62; Kline v. Johnson, 12 Harris 72; Pennsylvania Railroad Company v. Zebe et ux., 9 Casey 323.

Charles Albright, for defendant in error.—The action is trespass. The counsel for the plaintiff in error thinks it should have been trespass on the case, and this really is the question for review here. It constitutes the first exception of plaintiff in error. "Trespass vi et armis," is the technical name of the action of trespass for injuries to the person or property, being the proper remedy whenever the act complained of is directly and immediately injurious, or was done with direct violence, which the law will in such cases imply, whether it was actually used or not; hence the injury is said to have been committed with force and arms: Burrill's Law Dictionary, part 2, p. 997.

It is true, as stated in Smith v. Rutherford, 2 S. & R. 358, that "the criterion of trespass is force directly applied," but this may be done by a servant at the instance of his master: 1 Chitty's Plead. 180; 2 Greenl. 224. "When an injury is caused immediately by the act of another, whether wilfully or carelessly, trespass is the proper remedy:" Bacon's Abr., vol. 9, pp. 44, 446.

"It lies against an infant or feme covert for procuring another to commit an assault and battery:" Troubat & Haly, vol. 2, p. 44.

Yerger et ux. v. Warren, 7 Casey 322, affirms the ruling in this case.

"Though a party driving on a public road, should lose all control of his horses, and an injury ensues in consequence, yet if the jury believe that the loss of control was the result of the defendant's prior fault, the plaintiff may recover:" Kennedy v. Wrag, Brightly's Rep. 186.

The cases of Welsh v. Cooper, 8 Barr 207; Childerston v. Hammond, &c., 9 S. & R. 68; Fisher v. Kean, 1 Watts 279; and Cummings v. Cummings, 5 W. & S. 556, have no bearing whatever for the purpose for which they seem to be introduced.

Great stress is put upon the following words: "The act was done by the defendant himself, and not by his servant." This is the language of the court; and was used because the plaintiff in error insisted that the plaintiff below had mistaken his remedy; that, instead of trespass, the action should have been trespass on the case, and was anxious that the court should so charge the jury, and thus prevent a recovery of damages in this form.

The team that was driven belonged to plaintiff in error. It started from his house the morning of the day on which the accident occurred. He was with it all day, and it was subject to his order and control. He sat behind it, and at his command it could have been turned upon an entirely different mission from that on which it was employed. His servant was driving it, and under no aspect of this case could an action have been sustained against this servant.

It was the act of the master, and whether it amounted to a trespass or an action on the case — the language of the court, that "the act was done by the defendant himself, and not by his servant," was eminently proper, and not a subject of error.

The question as to whether the form of action should have been trespass or case, was a question of law for the court to pass upon, and not to be submitted to the jury; indeed, to have done so would have been error. But it was for the jury to say whether, under the evidence, the plaintiff was entitled to recover, and whether the evidence sustained his action; and this was fairly and broadly submitted. "If the damage was the result of negligence on part of the plaintiff, he cannot recover; or if it was caused by the mutual fault of both parties, he cannot recover." This was giving the whole case to the jury. It referred the question of fault and negligence to them under the evidence.

A consideration of the whole charge does not sustain the views of the attorney for plai...