Wilkinson v. Stewart

• Decision Date: 07 January 1878
• Citation: 85 Pa. 255
• Parties: Wilkinson, Carter & Co. <I>versus</I> Stewart <I>et al.</I>
• Court: Pennsylvania Supreme Court

Page 255

85 Pa. 255

Wilkinson, Carter & Co. versus Stewart et al.

Supreme Court of Pennsylvania.

October 15, 1877.

January 7, 1878.

October 15th 1877.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON, WOODWARD and STERRETT, JJ.

Error to the Court of Common Pleas of Venango county: Of October and November Term 1877, No. 155.

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Dodd & Lee and Neill & Heywang, for plaintiffs in error.—The court were clearly wrong in fact, when they assumed that there was no injury to defendants' oil by the mixture. But whether wrong or right in their assumption of fact, the court should have left the question to the jury whether the oil of defendants was uninjured by the mixture, and instructed them that even if such was the case, replevin was not the proper remedy: Snyder v. Vaux, 2 Rawle 427. See Musselman v. Railroad Co., 2 W. N. C. 105.

The court, we contend, also erred in the language in which they submitted to the jury the question as to how such oil had been taken out and returned. The defendants below were innocent of any wrong. They were, in fact, less in fault, and more wronged, than the plaintiffs; and under the circumstances of this case, the only just and correct theory to hold is that the plaintiffs and defendants became joint owners of the mixture in defendants' tank, according to the value of the respective portions of each; and if so, replevin would not lie: Hilliard on Remedies for Torts 43; Barnes v. Bartlett, 15 Pick. 71.

T. A. Morrison and C. Heydrick, for defendants in error.— Throughout the trial it was not shown that the oil transferred from plaintiffs' tank to defendants' was not like the oil in that of the latter at the time of the transfer. There was no evidence whatever to show any difference in quality. In Pennsylvania, replevin lies wherever one man claims goods in the possession of another, and this, whether the claimant has ever had possession or not, and whether his property in the goods be absolute or qualified, provided he has the right of possession: Harlan v. Harlan, 3 Harris 507. And it seems but another mode of stating the proposition, to affirm that whatever goods a man may lawfully recapture as his rightful possession, he may invoke the process of the court to restore to or put in his possession. It would be an anomaly in jurisprudence to hold that a man may of right do with a strong hand what the ministers of the law are powerless to do for him: Sharswood's note to 2 Blackstone 405; Wood v. Fales, 12 Harris 246; Tripp v. Riley, 15 Barb. 333; Fobes v. Shattuck, 22 Id. 568; Kimberly v. Patchin, 19 N. Y. 330; Whitehouse et al. v. Frost et al., 12 East 614.

Mr. Justice PAXSON delivered the opinion of the court, January 7th 1878.

The first specification alleges that the court below erred in assuming in its charge to the jury that the oil in defendant's tank was uninjured by the mixture. This would have been error had any such question of fact been distinctly raised upon the trial. The learned judge says in that portion of the charge: "The property, as manifest from the treatment of all parties, was uninjured by the mixture, and no wrong is done to any one by each taking out his proportion of the common mass." This language leaves us no room to doubt that the court was under the impression at least that no question had been seriously made on the trial as to the quality of the oil in defendants' tank. A careful examination of the evidence leads us to the conclusion that the court was correct in this respect. The evidence of Mr. Sterritt, relied upon by the plaintiffs in error, is not essentially in conflict with this view. He says he examined the Carter tank prior to March 31st 1876, and there was three feet of liquid; one foot of sediment and two feet of what the witness supposed to be good oil. He examined the tank again after it was filled up by oil from the Caledonia tank, on the date last mentioned, and found about eleven feet of liquid, of which two feet eight inches was sediment and the balance good oil. The amount of sediment would seem to bear more upon the question of the quantity than the quality of the oil — the sediment being deducted in estimating quantity, and the superincumbent oil not being essentially affected in quality thereby. The evidence also tends strongly to show that Johnson & Co. practically exhausted the Carter tank prior to the last run from the Caledonia tank in the latter part of March 1876, from which it would follow that the oil in the Carter tanks, after said run, having been almost if not wholly drawn from the Caledonia tank, must have been of one quality. Not only does the evidence fail to disclose any serious contention as to the quality of the oil, but the points put to the court by the defendants below make no reference to any such question. Had the oil been so mixed in defendants' tank as to change its quality in an essential degree, so that one barrel drawn out would not be the equivalent of any other barrel previously put in, it was an important fact to have shown, and would not have escaped the vigilance of counsel either in the examination of the witnesses or the points submitted to the court. We do not think this specification is sustained.

The second specification is not free from difficulty. The learned judge at the conclusion of his charge submitted to the jury as a question of fact, whether the oil restored to the Caledonia tank by Johnson & Co. was placed there in return...