Dutton v. Lansdowne Borough
48 A. 494
Pa.
1901
Check Treatment

Opinion by

Mb. Justice Potter,

The theory upon which the municipality, and the property owner, were sued jointly in this case, is radically wrong. As a result, the judgment must be reversed, for the reason, that the action was brought in a form which cannot be sustained.

The distinction between the duty of the municipality and the property owner is clearly stated in Brookville Borough v. Arthurs, 130 Pa. 501, by Justice Stebbett, in which he says, “ The borough and Mr. Arthurs were in no sense of the term joint wrongdoers. They did not co-operate in the same wrongful act in such way as to make them joint wrongdoers. While it is true that the borough could not deny its liability for neglect of its general duty to see that the streets and sidewalks thereof are kept in reasonably good and safe condition, it cannot be contended that the corporation in any way co-operated *566with the defendant in his neglect to perform the duty which, as between it and himself, he assumed to discharge. As shown by the evidence the true relation of the defendant to the borough was that of a resident property owner bound by the ordinance, and still further by his express promise, to keep the sidewalk in question in good repair. The claim is not for contribution but to recover from the defendant the amount which the plaintiff was compelled to pay in consequence of his neglect to do what he should have done and expressly promised to do.”

The authorities all seem to agree that the plaintiff has the right in cases of this character, to sue either the municipality or the owner, but it does not follow that both can be sued jointly, the measure of responsibility being very different. In Lohr v. Philipsburg Borough, 156 Pa. 246, which was a sidewalk case, the lower court held the borough to the same measure of liability as an employer. But this court, speaking by our Brother Mitchell, in reversing, said : “ There is a clear distinction to be taken between the duties in the two cases. That of the master is primary and absolute, to know and to do, while that of the borough, or of any municipality, as to sidewalks, is secondary and supplemental, to see that the property owner makes and maintains a safe pavement; and its breach of duty is not in failing to do the work, but in failing to compel the owner to do it.”

And again, in Duncan v. Philadelphia, 173 Pa. 550, this court said: “ It is the duty of a municipality to exercise a reasonable supervision over its sidewalks; but, as the first duty in relation to them rests upon the property owner, and that of the city is secondary only; it is not liable for defects without notice, actual or implied, of their existence.”

And again, in Mintzer v. Hogg, 192 Pa. 137, the court says: “ It is the primary duty of property owners along a street, to keep in proper repair the sidewalks in front of their respective properties; hence it is that, owing to this primary liability, many cases exist in this state, in which, after recovery from the municipality, the latter has successfully recovered over from the property owner on account of his breach of his primary duty to keep the sidewalk in a safe condition.” We repeat, therefore, that it does not follow, that because both the property owner and the borough may be liable, each for the neglect of a particular duty, that they may be joined in an action of tort. The *567breach of duty here, is not like that of maintaining a party wall—which is equally incumbent upon both parties. The case of Durkin v. Kingston Coal Company, 171 Pa. 193, has been cited as analogous to the view taken by the trial court. But that case did not turn upon the precise point being considered here, and the court did not pass upon any difficulty growing out of the pleadings. It is difficult to see where any authority for sustaining the judgment in this case, can be found, in Little Schuylkill Navigation Co. v. Richards, 57 Pa. 143, or in Leidig v. Bucher, 74 Pa. 65, as they are authority for the doctrine that defendants who have not joined in committing a wrong should not be joined in the same action. Neither does Laverty v. Vanarsdale, 65 Pa. 507, and other similar cases cited, touch the point here. If two defendants be sued jointly, for a tort, and the evidence is not sufficient to hold one, there may be a discontinuance as to that one, and the trial may proceed, as to the other. In such case, the joint action does not fail, because the tort is not joint, if committed, but for the reason that the evidence fails to show any concert of action.

But where the declaration is for a joint tort, and the case goes to the jury as against both defendants, if under such circumstances, the evidence fails to show that the defendants were joint tort feasors, it is error to permit a recovery against one or both. Such a case would show, not a more misjoinder of parties, but a misjoinder of causes of action.

In any view of the question, the relation between the municipality and the owner, presents separate and distinct causes of action, and they cannot be sued jointly.

The judgment is therefore reversed.