Valley Forge Gardens, Inc. v. James D. Morrissey, Inc.

• Decision Date: 25 June 1956
• Citation: 123 A.2d 888,385 Pa. 477
• Parties: VALLEY FORGE GARDENS, Inc. v. JAMES D. MORRISSEY, Inc., Appellant.
• Court: Pennsylvania Supreme Court

Page 888

123 A.2d 888

385 Pa. 477

VALLEY FORGE GARDENS, Inc. v. JAMES D. MORRISSEY, Inc., Appellant.

Supreme Court of Pennsylvania.

June 25, 1956.

Rehearing Denied July 31, 1956.

Louis F. Floge, Josephine H. Klein, Bernard G. Segal, Schnader, Harrison, Segal & Lewis, Philadelphia, for appellant.

Ralph S. Croskey, Croskey & Edwards, Philadelphia, for appellee.

Manus McHugh, Strong, Sullivan, Saylor & Ferguson, Philadelphia, for Contractors Ass'n of Philadelphia and Eastern Pennsylvania.

Before STERN, C. J., and JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ.

JONES, Judge.

The Valley Forge Gardens, Inc., sued James D. Morrissey, Inc., in trespass to recover damages for the alleged injury by the defendant of five artificial ponds of the plaintiff which it maintained for ornamentation of its Memorial Park Cemetery in the vicinity of King of Prussia in Montgomery County.

The defendant corporation, pursuant to a public contract with the State Highway and Bridge Authority (created by the Act of April 18, 1949, P.L. 604, 36 P.S. § 3601), constructed a portion of the 'Philadelphia Expressway'--a highway running from the eastern extension of the Pennsylvania Turnpike at King of Prussia to Philadelphia. Approximately a quarter of a mile to the north of the plaintiff's cemetery the defendant contractor was required, in accordance with its contract and related plans prepared and supplied by the State Highway Department, to construct a fill some 35 feet high and extending 1,000 to 1,500 feet in length. The fill necessarily crossed, at right angles, a narrow (2' wide) stream, which fed the plaintiff's ponds and which was conducted through the made embankment by a steel pipe culvert. The plaintiff's ponds were some 1,200 feet distant from the right-of-way of the Expressway, and the stream in its intervening meandering passed under two other highways. By the time the defendant had completed its contract, dirt and silt, washed by the natural effects of erosion from the slope of the fill, had been carried by the stream into the plaintiff's ponds and eventually filled them. The plaintiff had the ponds dredged and built a de-silting basin to prevent their being filled again in such a manner. The cost of that work was the quantum of the damages which the plaintiff sought to recover in the instant suit.

The plaintiff, in its amended complaint, alleged that the damage to its ponds and the deposit of dirt and silt therein were the result of the defendant's negligent construction of the highway fill in disregard of the possible effects of erosion and that, in thus filling the ponds with dirt and silt, the defendant was guilty of trespass quare clausum fregit. The defendant in its answer denied that it had constructed the fill negligently or carelessly but, on the contrary, averred that it had performed the work in a careful, lawful and prudent manner in a accordance with its contract with the State Highway and Bridge Authority and the accompanying plans and specifications. The defendant joined the Authority as an additional defendant, but the latter's preliminary objections were sustained on the ground that the Authority was an instrumentality of the Commonwealth and, therefore, immune from suit in the absence of specific statutory provision. No appeal was taken from the order eliminating the Authority as an additional defendant.

At trial, the plaintiff offered no proof that the defendant had performed its work under the contract negligently. That issue was accordingly withdrawn from the jury by the learned trial judge with the consent of counsel and is no longer in the case. The defendant had affirmatively proved that all of its work had been done in strict accordance with the contract and the plans and specifications. The trial judge submitted the case to the jury for two special findings,--'1. Do you find from the evidence that this embankment washed down on the plaintiff's property?' and '2. What was the damage to the plaintiff in attempting to correct the result of the wash-down of that earth? How many dollars?' The jury answered 'yes' to the first question and, in answer to the second, fixed the amount of the damage to the plaintiff in dollars. The question of law as to whether the plaintiff had a right to recover against the defendant in the premises was reserved by the court which, thereafter, answered the question in the affirmative and entered a judgment for the plaintiff in the amount fixed by the jury's special verdict. On exceptions, the judgment was confirmed by the court en banc, and the defendant appealed.

The case is governed by the rule encunciated in Ference v. Booth and Flinn Company, 370 Pa. 400, 403, 88 A.2d 413, 414, where Mr. Chief Justice Drew, speaking for the court, declared that 'It is hornbook law that the immunity from suit of the sovereign state does not extend to independent contractors doing work for the state. But it is equally true that where a contractor performs his work in accordance with the plans and specifications and is guilty of neither a negligent nor a willful tort, he is not liable for any damage that might result. 40 C.J.S., Highways, § 212, p. 208.'

The facts in the Ference case were that the defendant corporation, while constructing a road for the Commonwealth, caused a slide of a steep hillside. The slide, in turn, produced large fissures and cracks in a public highway, higher up on the hillside, which was open to travel while the new construction work was going on below. The damage thus done to the existing public highway necessitated that it be closed. The closure entailed great loss and expense to the plaintiffs who were the operators of a bus line with a certificated route over the closed highway. The plaintiffs' buses were compelled to make detours of considerable additional mileage with resultant loss of passenger revenues and at increased expense of operation. It was to recoup such losses that the plaintiffs sued the defendant company for damages on the theory that the defendant was guilty of maintaining a nuisance in unnecessarily delaying the repair of the public highway and, consequently, in not getting it open for travel within a reasonable period of time. The defendant, in performing its construction contract with the Commonwealth according to the plans and specifications, had been compelled to excavate at the foot of the steep hillside, just as it had done; and the plaintiffs conceded that the slide was not caused by any negligence on the part of the defendant. We affirmed the judgment of nonsuit entered below because of the contractor's non-liability.

In every jurisdiction in this Country where the question has been passed upon (and that includes the Supreme Court of the United States, other Federal courts and courts of approximately half of the States), it has been uniformly held that in the absence of negligence or wilfully tortious conduct on the part of an independent contractor, he is not liable for injury to another's property which is caused by the performance of his contract with a governmental instrumentality in accordance with its plans and specifications. ¹ There has not been cited to us, nor has our independent research disclosed, a single case holding to the contrary. ²

The foreseeable effects of erosing on the fill in the vicinity of the stream was a matter for the Authority to contemplate and guard against. In Nelson v. McKenzie-Hague Co., 192 Minn. 180, 189, 256 N.W. 96, 100, 97 A.L.R. 196, the Supreme Court of Minnesota pertinently said,--'That the state itself may have proceeded wrongfully in not foreseeing the consequential damage to plaintiffs' property and making provision for its compensation supports not at all the conclusion that either the highway commissioner or defendant [contractor] has committed wrong in proceeding with the work in the only way it could be done. Having committed no wrong, defendant should not be subjected to liability. It is not saved by the state's immunity from suit, but by its own innocence of wrongful acts resulting in liability as for tort.'

The appellee contends, however, that, even conceding the rule as to the non-liability for injury to another which a contractor inflicts while engaged in the performance of a...