Getz v. Philadelphia & Reading Railroad, 105 Pa. 547

Getz v. Philadelphia & Reading Railroad

105 Pa. 547 | Pa. | 1884

Mr. Justice Sterrett

delivered the opinion of the court, October 6, 1884.

While the learned judge did not say in express terms, that the tenants, II. S. Getz & Co., had no such interest in the lot and machinery thereon, or in the business that was there carried on, as would entitle them to recover, he practically instructed the jury that they had no case. In his rulings on *552offers of evidence and in his instructions to the jury, he suggested in a way that could not be misunderstood, that they had shown nothing on which to base a claim - for damages against the Railroad- Company. In excluding the offer to prove by the junior member of the firm, “ that, after the location of defendants’ road on the lot, it was impracticable for plaintiffs to continue their business on the lot; that in consequence of such location they were obliged to remove their establishment,'and what was the cost-of such removal,” the learned Judge said: “ The damages would be speculative; the lessees have not shown that they had a lease which created such an estate as entitles them to any damages.” Again, in rejecting the offer to prove by the senior member of the firm the amount of damages done to the machinery by reason of the location of the road, he said: “ This proceeding is for the recovery of damages done to land, and this land includes appurtenances thereunto ‘ belonging : but how machinery belonging to a different party from the landowner could be claimed as appurtenant to the land, I cannot see, and unless it were appurtenant to the land, it would not be an element of damages in this issue.” In answering plaintiffs’ first and second points, in which he was substantially requested to charge that Hiram S. Getz was entitled to recover all the damages he sustained as owner in fee of the lot, and H. S. Getz & Co. were entitled to recover the damages they sustained as lessees of the premises, he said, inter alia: “ H. S. Getz & Co. are entitled to recover all the damages to the leasehold, whi'ch in this case has no time or term affixed.” Prior to this, in the general charge, after having spoken of the claim of Hiram S. Getz as owner in fee, he instructed the jury as follows: “ Then we come to the firm of H. S. Getz & Co. Being hung together Ave were in difficulty, and iio doubt you will be. In the first place, H. S. Getz & Co. have nothing to do Avith this land at all under the Act of Assembly, which provides for the assessment of damages, unless they show a lease and tenure there for a term or-number of years.” Again, referring to the plaintiffs! testimony, the learned'Judge said: “ There is no evidence of a lease here on the part of Hiram S. Getz to the firm of H. S. Getz & Co., none whatever. All that he said is, that when the old lease expired they had a rent of $600 a year until the spring of 1879. And that is this uncertain tenure upon which Ave are now asked to say to you, gentlemen of the jury, that there can be a recovery, because this firm had put much machinery in there. That is a tenancy so much at will, instead of what is defined as a tenancy for a term of years (Mr. Getz himself said there was no time, — ‘no time’ is the expression that he used all through) that I cannot see how there can be-*553any recovery of damages on account of that lease. If you can find in this evidence that there was a term expressed in writing or in parol, in regard to this firm of H. S. Getz & Go. I cannot see it. But, if you can find anything of that kind in the evidence (you may recollect more than I do), you will have to take it into consideration.” Much more of similar import was said on the subject of H. S. Getz & Co.’s claim, but sufficient reference has been made to the rulings and charge of the court to show that a special effort was made to convince the jury that the firm had no case..

It is claimed by defendants in error that the foregoing answers to plaintiffs’ first and second points, taken in connection with the general charge, was a fair submission to the jury, of the lessees’ claim, on the evidence introduced by them. We are very far from being persuaded that sneh was the case. Notwithstanding the adverse and erroneous rulings of the1 court in the outset, the lessees afterwards succeeded in giving some evidence in support of their claim, but it was completely nullified by tire answers to their fourth, fifth and sixth points. The fourth point was: “ The evidence shows that the firm of H. S. Getz & Co. had such an interest in the premises on which the road was built, at the time of its construction, as is protected by the statute, and they are entitled to recover such damages as the jury may find, under the evidence, rhey sustained.” The answer to this was: “ I do not so understand the law.” In like manner their claim was practically excluded from the consideration of the jury by refusing to affirm their fifth point, as to damages, and saying: “ The tenure is too uncertain to form any proper estimate upon this point;” and also by saying in answer to their sixth point on the same subject : This would be regulated by their tenure, which is undefined by the evidence, and herein what is asked here would be merely speculative.”

It is very evident from the foregoing references to the rulings and instructions of the court that the lessees, H. S. Getz & Co., were most effectually ruled and charged out of court; and it is not at all surprising that they were also ignored by the jury in their verdict.

It is conceded that Hiram S. Getz, one of the plaintiffs, was owner in fee of the lot, at the southwest corner of Spruce and Canal streets, in the city of Reading, fronting 110 feet on the former and 81 feet on the latter street, and haying thereon erected a dwelling, warehouse, office, marble mill and other structures, with machinery used for sawing marble, to which business the lot was mainly devoted; and that a triangular portion of the lot at said corner was appropriated by defendant company for the use of its track located on each of said *554streets. It was claimed that by reason of the location and construction of the road at the point in question, and the appropriation of the said corner of the lot, the residue was greatly depreciated in value; and for this, together with the land actually taken, he claimed compensation. The burden of his complaint is, that in consequence of the adverse rulings of the court, he was not allowed as much as he was fairly entitled to. It was also claimed that H. S. Getz & Co., composed of Hiram S. Getz and his son James K. Getz, owned the stock and machinery, carried on the business of sawing marble, etc., and for that purpose were lessees and occupants of the premises; that the location and construction of defendants’ road greatly interfered with their business, rendered its continuance on the lot impracticable, and thus necessitated their removal therefrom. The fact that they were carrying on the business as partners was not questioned; and notwithstanding the exclusion of evidence that was clearly competent, they succeeded in introducing some testimony tending, to prove that they were lessees of the lot in question, at least from year to year, at an annual rental of $600, and that they had sustained damages for which they were entitled to some compensation at least. If the testimony had been submitted to the jury under proper instructions, they would have been warranted, if they believed it, in awarding damages to the firm as lessees of the premises; but, as we have already seen, the instructions of the court precluded any such result.

The. joinder of the owner in fee with his lessees, — the latter claiming damages to their leasehold, business, machinery, etc., and the former claiming damages to his reversionary interest in the premises, — was not objected to by the Railroad Company, and should have created no such serious embarrassment, either to the court or jury, as the learned Judge appears to have thought it did. It was certainly not to the disadvantage of the defendant. The united interests of the respective parties plaintiff's embraced everything that could properly form, the basis of claim for damages, direct or consequential; and having ascertained the aggregate amount of damages sustained, the jury could have no serious difficulty in designating the portion to which each of the plaintiffs was entitled. In the Railroad Co. v. Hall et al., 1 Casey, 336, it was held that damages occasioned to a tract of land owned by several different parties may be assessed in gross, and need not be apportioned among the different claimants according to their respective interests; but, we think the better practice is for the jury to find the aggregate amount, and then, if they have the evidence on which they can do so, apportion the same among the several claimants. The position of each of the *555plaintiffs in this case, and their respective rights, under the circumstances disclosed by the testimony, are correctly set forth in their first to sixth points inclusive, and these points should have been affirmed. The seventh point, as to the general rule for assessment of damages was rightly affirmed. There is no error in the answer to plaintiffs’ eighth point.

It may be remarked in closing that the assignments of error, , relating to plaintiffs’ points, are not according to rule and might be disregarded. When a point is answered in such a way as to be tantamount to a refusal- it is not enough to- complain as though it had been refused, without more. The answer as well as the point should be quoted, totidem verbis, in the specification of error.

Judgment reversed, and a venire facias de novo awarded.