Boyle v. Smithman, 146 Pa. 255

Boyle v. Smithman

146 Pa. 255 | Pennsylvania Court of Common Pleas, Butler County | 1892

Opinion,

Me. Justice Williams :

The transportation and storage of petroleum are regulated by the act of May 22, 1878. Among other provisions to be found in it is one that requires every corporation, association, person, or persons engaged in the business of transporting crude or refined petroleum by means of pipe lines, or storing it in tanks, to make and post conspicuously in the principal business office of such corporation, association, person, or persons a monthly statement showing the quantity of crude and refined petroleum on hand at the beginning and at the close of the previous month, and where the same was stored or kept. The statement must also show how much petroleum was received, and how -much was delivered to purchasers and owners, during the month; also, how much of the whole amount was held for other corporations, associations, or persons, and how much of the amount so held was represented by certificates, accepted orders, or other form of outstanding vouchers. For a failure to make out and post such statement of each month’s opera*273tions on or before the tenth day of the following month, the act provides a penalty of one thousand dollars,-with an additional five hundred dollars for each day after the tenth that the neglect shall continue.

Smithman owned or was in possession of a pipe line leading from storage tanks in or near Oil City to a number of wells some miles away, and having connection with wells along the route. He was, as the jury have found, engaged in the business of buying and selling oil on his own account, using the pipe line to collect his oil in the storage tanks from which his sales were made. Boyle was the publisher of a newspaper, and as such interested in the collection and publication of statistics relating to the oil business. Assuming that Smithman was engaged in transporting and storing oil for producers along his line, Boyle called upon him for a statement of his business, made out under the act of 1878. He declined to make a statement of his business, and denied that he was within the provisions of the act. This demand was repeated in successive months, until the penalties for not posting the statements in his office, and the additional daily penalties for the delay, would aggregate nearly eighty thousand dollars. This action was then brought.

The defence was that the act of 1878 was applicable to persons and corporations doing business as carriers, and to those providing storage for the public; and that its object was to protect the public, by compelling a correct showing of the business done, and the stocks in store. It was also contended that the defendant was not a carrier, and provided no storage for the public, but was a private purchaser, collecting and storing his own oil, and selling it as opportunity offered. Not holding oil for others, he issued no certificates or accepted orders, but his purchases of oil were entered upon his books ; the seller being credited with the amount delivered, and charged with the money paid, as in the purchase of any other commodity. For these reasons, it was urged that the defendant was under no duty to make the statement called for, and, if made, it could do no more than disclose his own private business, in which the public had no interest. The case turned, therefore, on the character of the defendant’s business. Whether he was in fact a purchaser of all the oil he transported, or was a com-*274moil carrier serving the public, was a question of fact, for the jury to determine. They have found this question in his favor, and under instructions which are not open to any just complaint. If the plaintiff was not injured by the rulings of the court now assigned for error, the question must be treated as finally settled by the verdict.

The first of these rulings was the refusal of the learned judge to permit the plaintiff to amend his declaration, at the trial, so as to include therein a charge that the defendant provided storage for the public, as well as transportation. As the jury have found that his business was that of a private purchaser, and that he was not serving the public, this refusal ceases to have any significance, and it is unnecessary to enter upon a consideration of it.

The second assignment is to the refusal of the court to compel the defendant to produce his books in court, so that they might be used as evidence against him on the trial. The act of 1878 is highly penal. This action is in form a penal action. Its object is to punish the defendant for disobeying the direction .of the statute, by imposing penalties amounting to about eighty thousand dollars. The defendant could not be compelled to testify against himself as a witness, and for the same reason he cannot be compelled to aid in his own conviction by the production of his books and papers. He had an unquestionable right to insist upon his privilege, and the court was bound to protect him in the enjoyment of it: Logan v. Railroad Co., 132 Pa. 403.

The answer to another of the assignments follows as a matter of course from what has been said. If the defendant was exercising a clear, legal right in refusing to produce his books, it was the duty of the court to deny to the counsel for the plaintiff the leave they asked to comment upon his refusal in their addresses to the jury. They asked to be allowed “ to refer to, and draw any legitimate conclusion that may be drawn from the fact that the defendant refuses to produce his books.” The court held that they had no right to refer to the defendant’s refusal “ as evidence in any way in favor of the plaintiff or against the defendant.” This was the least the court could say. The privilege of the defendant to decline to furnish evidence against himself, would be of very little value if the fact that he *275claimed its protection could be made the basis of an argument to establish his guilt. To extend to a defendant the formal protection of his privilege, and then allow the fact that he had claimed it, to be used as affording a presumption against him, would be a sort of mockery of which the law is not guilty. It not infrequently happens, on the trial of causes, that a party offers evidence that is objected to as irrelevant, and that is excluded for that reason; but I am not aware that any court has been afterwards asked to allow the counsel by whom the evidence was offered, “ to refer to, and draw any legitimate conclusion that may be drawn from the fact ” that the evidence offered was objected to by the other side. A party has a right to object to the form of the question put by his adversary, or to its subject matter. He has a right to insist on his privilege, whether his confidential adviser is called to the stand against him, or he is asked to testify against himself, in a criminal case or a penal action. When the court sustains his objection or his claim of privilege, that is, as to that point, a judgment in his favor. The evidence is then éxcluded, or the privilege extended, as the act of the court; and all the jury can properly know about it is that an offer was made in their hearing which was rejected, and which therefore is, for the purposes of the trial, as though it had not been made.

The remaining assignments do not require a separate consideration, and are not sustained. The certificates issued by the National Transit Company made no part of the plaintiff’s case. What he had to do was, not to show how other transporters conducted their business, but that the defendant was engaged in the business of transportation as a carrier for the public. It was competent, however, for the defendant, when he came to reply to the case made against him, to show that his business was that of a private purchaser, both in its character and its methods. In this connection, having shown his method of keeping accounts with those from whom he made purchases, it was competent for him to show the methods adopted by those who were known to be common carriers, that the jury might be the better able to determine the real character of his business.

The judgment is affirmed.