81 Pa. Super. 450 | Pa. Super. Ct. | 1923
Argued April 18, 1923.
It is the settled law in this Commonwealth that the State is not liable for the torts of its officers and employees in the absence of a statute assuming or imposing such liability: Collins v. Com.,
When, however, a state agency or instrumentality, authorized to enter into a contract in the performance of its governmental functions or duties, fails to perform, whether negligently or otherwise, that which it has legally agreed to do, there is no public policy which forbids its being required to fulfill its obligations or pay the damages consequent upon its failure to do so: Hagan Lumber Co. v. Duryea School Dist.,
In Williams v. Board of Commissioners of Kearney County,
The present case comes within the exception above noted to the general rule. It is not a case of pure tort, but of negligent performance of a contract. The plaintiff leased her building to the defendant for school purposes. The defendant's authority to make such a contract is expressly conferred by statute: Act of May 18, 1911, P.L. 309, section 602, p. 347. As a part of the contract of lease the defendant agreed to make such changes as were necessary to fit the building for school purposes, and to return the property in as good shape as when received. No rent was to be paid, but any improvements made by defendant were to belong to the plaintiff at the termination of the lease. The finding of the jury, under the charge of the court, establishes as a fact that the heating system was defectively and negligently installed; that the flue was negligently constructed and that the fire which destroyed the leased building resulted therefrom; and the testimony shows that notice of such defective construction and of the likelihood of fire resulting therefrom was given by the plaintiff to the defendant school board several weeks prior to the fire. In other words, the fire which destroyed the leased building was chargeable to, and was the result of, defendant's negligence.
Under the power given it by statute the defendant might have expressly covenanted in the lease to repair the building and rebuild it in the event of its destruction by casualty, in which event, it would have been obliged *455
to restore the building if destroyed by casualty, whether the result of negligence or accident: Hoy v. Holt,
As the verdict of the jury fixes the defendant's negligence as the cause of the fire which injured the leased building, we are of opinion that the defendant was bound to repair the damage resulting therefrom to the leased property or pay the loss sustained by the lessor on account thereof.
The plaintiff might have sued in assumpsit on the agreement of lease: Kelly v. Duffy, supra; but was not bound to do so. When special pleading was in force, an action on the case lay as well as covenant, for waste to leased premises: Kinlyside v. Thornton, 2 W. Bl. 1111. *456
The rule is stated in 1 Chitty on Pleading, p. 154*, "although there be an express contract, still if a common law duty result from the facts, the party may be sued in tort for any neglect or misfeasance in the execution of the contract." Thus for negligence by a common carrier in transporting goods intrusted to it the shipper may at his election bring either an action ex contractu or an action ex delicto: Eckert v. Pa. R.R. Co.,
The assignments of error are overruled and the judgment is affirmed.