40 Pa. Super. 644 | Pa. Super. Ct. | 1909
Opinion by
There is nothing of serious importance raised by the first and second assignments of error. Prior to the procedure Act of May 25,1887, P. L. 271, there were three well-known forms of actions of trespass, viz.: vi et armis, quare clausum fregit and trespass on the case. By the second section of that act it is provided: “That, so far as relates to procedure, the distinctions heretofore existing between actions ex delicto be abolished, and that all damages, heretofore recoverable in trespass, trover or trespass on the case, shall hereafter be sued for and recovered in one form of action, to be called an action of trespass.”
Under this act and the numerous decisions thereunder, the plaintiff was entitled to recover in this action of trespass, under his declaration, which is a fairly concise statement of his cause
In Devlin v. Snellenburg, 132 Pa. 186, it was held as stated in the syllabus: “One who paints an advertisement of his business upon the wall of a building belonging to another, at the time under lease to a tenant, is not relieved from liability to the landlord by the fact that the tenant consented thereto. Where the wall is injured, the injury is an injury to the reversion, and the owner thereof may have his action on the case (or the statutory action of trespass) therefor: Ripka v. Sergeant, 7 W. & S. 9; Schnable v. Koehler, 28 Pa. 181; McIntyre v. Coal Co., 118 Pa. 108.” See also Hennessy v. Anstock, 19 Pa. Superior Ct. 644. The first and second assignments are not sustained.
There is no merit in the third assignment. The defendant, by counsel, appeared and entered a general plea of not guilty, and the case was tried on the theory that the defendant was duly incorporated and had a corporate existence long after the alleged trespass and after the commencement of the suit. Moreover, the learned counsel for the defendant admit this
The fourth assignment of error complains of the court for refusing the defendant’s fourth point that under all the evidence the verdict of the jury must be for the defendant. Under the evidence the case was for the jury and therefore this point could not have been affirmed.
The grounds of complaint raised by the fifth, sixth, seventh, eighth and ninth assignments will disappear when the plain
We discover no reason why, by a slight amendment of the declaration,- the plaintiff might not .have recovered in this action all of the damages he suffered by the unlawful entry upon and use of his lands by the defendant corporation.
We find no serious error in this record and instead of convicting the court of error we are lead to the conclusion that great patience and good judgment were exhibited by the learned judge during the trial of the case and, we think, the verdict and judgment below does no injustice to the defendant.
We cannot sustain the tenth assignment as in our opinion the learned court properly submitted the plaintiff's evidence to the jury for consideration along with the other evidence.
In their oral and printed argument the counsel for plaintiff offered to file a stipulation to the effect that the verdict and judgment below will be accepted in full of all damages, including the servitude. If this is done it will not be necessary to make a formal amendment to the declaration.
In the following order it is assumed that the plaintiff will file the stipulation mentioned and, therefore, no alternative order is made. If, on notice from the prothonotary to the plaintiff, or his counsel of record, he shall within ten days file a stipulation as above indicated, then the prothonotary will enter, “The assignments of error are all overruled and the judgment is affirmed.”