Sturzebecker v. Inland Traction Co.

• Decision Date: 06 March 1905
• Docket Number: 159
• Citation: 60 A. 583,211 Pa. 156
• Parties: Sturzebecker, Appellant, v. The Inland Traction Company
• Court: Pennsylvania Supreme Court

60 A. 583

211 Pa. 156

Sturzebecker, Appellant, v. The Inland Traction Company

No. 159

Supreme Court of Pennsylvania

March 6, 1905

Argued January 30, 1905

Appeal, No. 159, Jan. T., 1904, by plaintiff, from order of C.P. Montgomery Co., June T., 1903, No. 11, refusing to take off nonsuit in case of Annie H. Sturzebecker v. The Inland Traction Company and The Philadelphia and Lehigh Valley Traction Company. Affirmed.

Trespass to recover damages for injuries to land.

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

Error assigned was refusal to take off nonsuit.

The assignments of error are overruled and the judgment is affirmed.

Henry Freedley, with him A. R. Place, for appellant.

N. H Larzelere, for appellees.

Before MITCHELL, C.J., DEAN, FELL, POTTER and ELKIN, JJ.

OPINION

MR JUSTICE POTTER:

Two defendants, The Inland Traction Company and The Philadelphia and Lehigh Valley Traction Company, were here sued as joint tort feasors. The statement alleges that The Inland Traction Company located and constructed a trolley railway in front of and over the lands of the plaintiff, and "about the time of the said construction, leased to or in some other manner unknown to the plaintiff, merged with the said defendant The Philadelphia and Lehigh Valley Traction Company, and thereafter by virtue of said merger, operated the said railway."

The plaintiff complains of injury from two cases: First, from the construction, and, second, from the operation of the railway. By the construction, she says the defendants broke down, destroyed and blocked her drain pipes, resulting in the flooding of her greenhouse. By the operation of the railway and the rumble and jar of the passing cars, she alleges that her greenhouse is shaken and the glass therein broken; also that electricity escapes and charges the heating pipes.

Upon the trial, at the close of the plaintiff's testimony, judgment of compulsory nonsuit was entered. In his opinion refusing to take off the nonsuit, the trial judge says that there was not a particle of proof that there had been any lease or merger between the two companies, nor was there any evidence that The Philadelphia and Lehigh Valley Traction Company had done any act or thing of which plaintiff complained. Our reading of the testimony bears out this statement of the trial judge. The case seems to be absolutely bare of any evidence of any concert of action between the two defendants. It is stated by counsel for appellee in his argument, that when the motion for a nonsuit was made in the court below, the trial judge reminded counsel for appellant of his right to amend his declaration, and proceed against one or the other of the defendants separately. But the suggestion was not accepted and the appellant insisted upon standing upon the statement and the evidence as they were. There is no apparent reason for the position thus taken by the plaintiff. It would seem to be a work of supererogation to review the decisions in which we have held that when a joint tort is alleged in the declaration, a joint tort must be proved, in order to sustain the action. But the fact that this appeal is now before us, indicates that it may be useful to again call attention to what has been decided in Pennsylvania, with reference to this point.

Beginning with Howard v. Union Traction Co., 195 Pa. 391, we pointed out, that when suit is brought against two defendants for joint negligence, there can be no recovery upon the joint action, where it appears that there was no community of fault by the two defendants in the act which occasioned the injury. As we then stated, the opinion of the court below in that case, by Judge BEITLER, "contains a very clear and forcible exposition of the whole subject and a sufficient reference to the authorities which control the question."

Then coming down the line, in Dutton v. Lansdowne Boro., 198 Pa. 563, we said: "But where the declaration is for a joint tort, and the case goes to the jury as against both defendants, if under such circumstances the evidence fails to show that the defendants were joint tort feasors, it is error to permit a recovery against one or both. Such a case would show, not a mere misjoinder of parties, but a misjoinder of causes of action."

The evil of joining promiscuously in an action different defendants without regard to the lack of concerted action among them, is thus noted in Wiest v. Electric Traction Co., 200 Pa. 148: "This case is an illustration of a practice which is not to be commended. 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 beginning 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,...