Towt v. City of Philadelphia

• Decision Date: 20 January 1896
• Docket Number: 427
• Citation: 173 Pa. 314,33 A. 1034
• Parties: William P. Towt, Appellant, v. The City of Philadelphia, Lemuel J. McCaulley and Edward V. McCaulley, Trading as McCaulley Brothers
• Court: Pennsylvania Supreme Court

33 A. 1034

173 Pa. 314

William P. Towt, Appellant, v. The City of Philadelphia, Lemuel J. McCaulley and Edward V. McCaulley, Trading as McCaulley Brothers

No. 427

Supreme Court of Pennsylvania

January 20, 1896

Argued January 9, 1896

Appeal No. 427, Jan. T., 1895, by plaintiff, from judgment of C.P No. 4, Phila. Co., Dec. T., 1890, No. 686, on verdict for defendants. Affirmed.

Trespass to recover damages for injuries to a horse and wagon. Before WILLSON, J.

At the trial it appeared that on February 28, 1888, the city leased the Cumberland Street wharf on the Delaware river to McCaulley Bros. The lease was for three years, and contained a covenant against subletting. On May 31, 1890, McCaulley Bros. sublet the wharf to Michael Herron for a period of nine months. Herron went into possession of the wharf, and was in possession thereof on December 31, 1890, when the accident to plaintiff's horse and wagon occurred. Plaintiff claimed and introduced evidence tending to show that the wharf was in bad condition, inasmuch as the cap log extending along its edge was covered up, and nothing provided to prevent a horse and wagon from slipping over into the dock.

The court charged in part as follows:

[The city was the owner of the wharf apparently, and about that there is no dispute. She leased it to McCaulley Bros. Perhaps the evidence does not fully and clearly establish what the condition of the wharf was at the time the city made the lease. Unquestionably, in my mind, if that wharf was in proper and safe condition at that time to be used, whether by reason of the existence of a cap log or for any other reason the city cannot be held responsible. You will bear that in mind -- that is, that if at the time the city made the lease to McCaulley Bros. the wharf was in proper and safe condition to be used, the city cannot be held responsible, because, as landlord, she was only responsible for its condition at the time the lease was made.] n[2] . . .

Another point, however, arises. McCaulley Bros., as I have said, had a lease from the city for this wharf. It is true that that lease contained a proviso that they should not sublet or assign it without the consent of the city authorities indorsed upon the document. In point of fact, however, they did make a lease to a man named Herron. Now there is a difference of opinion, as you have heard in the argument, as to what the rights of the parties were, as a consequence of such assignment or subletting, it being technically a subletting. Counsel for the plaintiff claim that that makes no difference; that McCaulley Bros. having covenanted in their lease with the city that they would not sublet, they must be regarded as if they had not sublet, but had continued to be the tenants and occupiers of the wharf at the time the injury occurred. I do not think so. [The lease was a covenant which was in the interest of the city, which the city had a right to waive. By the express terms of the lease, if it was broken, the lessee might be regarded by the city as having abandoned the lease; but so far as third parties were concerned, it does not strike me that it makes any difference, and if, in point of fact, as in fact they did according to the evidence, McCaulley Bros. made a lease of the wharf to Mr. Herron, then the same question arises with reference to them that I have already mentioned with reference to the city, and that is, did they at the time they made that lease to Herron pass over a wharf to him which was in proper and safe condition for use? If they did, they are discharged of responsibility. If you find that they did not and that therefore they are guilty of negligence, then you must find them negligent on the ground of something...