Hileman v. Hileman, 172 Pa. 323

Hileman v. Hileman

172 Pa. 323 | Pa. | 1896

Opinion by

Mr. Justice Dean,

The plaintiff, Joseph Hileman, was the lower landowner on *328a small stream; the defendants operated a distillery on the stream above him; he alleged, they, by slops and other refuse from the distillery, so polluted the water as to render it unfit for use, and thereupon, on June 27,1892, he brought trespass for damages. The case came on for trial June 5, 1893, and resulted in a verdict for defendants; on motion for new trial, the verdict was set aside and new trial granted; plaintiff then moved to amend by strikiug from the name of defendants the words, “ doing business under firm name of Hileman Distilling Company ; ” this motion was granted, and the case again came to trial March 9, 1894; there was a verdict for plaintiff for nominal damages. From judgment entered on this verdict, defendants appeal, assigning eight errors. The first and second are to the ruling of the court, permitting the amendment of the record. The plaintiff obviously made a mistake in charging the defendants as partners instead of as joint wrongdoers; such a mistake, under our statute, is clearly amendable; the juncture at which the amendment was moved for was, however, after one trial, and when a new trial had been granted; then a considerable bill of costs had been incurred. As the record here presents itself, apparently, this amendment ought to have been allowed only on terms which would have imposed costs upon plaintiff; but this was in the discretion of the court below; what may have appeared to the learned judge of that court, which we do not see, is only conjectural. The presumption is, that his discretion was exercised wisely, and grounded on sufficient reasons; we will not assume it was arbitrarily exercised, and there is no sufficient proof that it was. The statutes of amendment are to be construed liberally so as to effect the intent of them. Their object was to reach a trial on the merits, and any reasonable exercise of the discretion reposed in the trial court ought not to be disturbed in a court of review, when, as must necessarily be the case, our knowledge of all the circumstances leading to the amendment may not be as full as that of the judge who allows it. Therefore, these two assignments are overruled.

The third, fourth, fifth and sixth assignments practically raise the same question. The court permitted plaintiff to offer evidence that defendants were the owners and operators of a distillery, and that they negligently permitted the noxious ref*329use to enter the stream which flowed through plaintiff’s land; the purpose in polluting the stream was not malicious, but merely selfish; they disposed cheaply of that which occasioned damage to the lower landowner, not with an intent to injure him, but merely to benefit themselves. It was not as if he had charged them with breaking his close, or cutting his timber; it was, of operating, as owners, their manufacturing establishment in such a manner as necessarily injured him. The evidence, that as co-owners they operated the distillery, was in this view of the act admissible, and from it the jury might infer both were guilty of the wrongful act. Either could have offered evidence in rebuttal tending to show it was not the joint act of both. While as to distinct acts of trespass, such as cutting down trees or tearing down fences, evidence of a partnership would not have been admissible to charge two or more defendants jointly, yet under the facts here it did tend to prove these defendants jointly answerable, and there was no error in admitting the evidence.

The seventh and eighth assignments are to the ruling of the court permitting plaintiff, under act of May 2, 1876, to give notice of claim for damages up to date of trial, and to offer evidence under the notice. The act says: “ In all actions now pending or hereafter to be brought for the recovery of damages, or mesne profits, it shall be lawful for the plaintiff at any time not less than fifteen days before trial, to give notice to the defendant or his attorneys that he proposes to claim damages or mesne profits up to the date of trial of such suit; and on such trial the plaintiff may recover such damages or mesne profits, not barred by the statute of limitations, to the time of such trial, as may be warranted by the law and the evidence.”

Clearly, the purpose of the act was to relieve from the necessity of multiplied actions. If the right of a plaintiff is determined in one action, it tends to a cessation of strife and prevention of accumulation of costs to have his damages determined by the same trial. In three distinct instances in one short section, the disjunctive is used by the legislature: “ Damages or mesne profits.” This indicates an intention to extend the act to cover also, cases other than those where the possession as against the plaintiff is wrongful; it seems to have been *330intended specially to reach those cases, where the plaintiff has been kept out of his rightful possession by the trespasser; but it goes further, and brings within its scope other actions for damages. What actions ? — Apparently those trespasses of a continuing nature, such as the one before us; those in which a second action might be brought for damages sustained after service of writ, but the right to which would be determined by the verdict in the first suit. Damages for the pollution of a stream by the upper landowner, a manufacturer, in most cases is a continuing wrong down to trial; if the lower landowner’s right be determined at the first trial, why should he be put to the vexation and costs of a second action? It was just this burden the legislature sought to relieve against by this act. Undoubtedly the learned counsel for appellant is right in arguing the act cannot embrace all actions for damages; those wrongs which do not include a continued possession of land hostile to the rightful owner, nor an assumed right by the upper landowner to continually pollute a stream to the damage of the lower landowner; wrongs which, from their very nature," are perpetrated at only distinct or rare intervals are not within the meaning of the act. Suppose, instead of establishing a distillery permanent in its character, defendants had dumped into this stream the contents of an outhouse vault; the right of plaintiff would have been violated; they might have repeated the wrong, but it would not have been the case intended by the act; such a trespass, if held to be within the act, would possibly result in an absurd condition; the plaintiff having failed to prove any wrong before suit brought might, nevertheless, clearly prove one after; we then would have the case of sustaining an action brought without cause, and a verdict for a wrong committed thereafter.

The act of 1876 certainly contemplated no such absurdity. While the point raised here is new, and appellant’s argument is plausible; still we are of opinion the act includes within its terms every such cause of action as from its nature is a persistent, continuing wrong. Therefore the seventh and eighth assignments of error are also overruled, and the judgment is affirmed.