Minnich v. Lancaster & Lititz Electric Railway Co., Appeal, No. 32

Appeal, No. 32 | Pa. | Oct 13, 1902

Opinion by

Mr. Justice Fell,

The error in practice corrected by the decisions in Howard v. Union Traction Co., 195 Pa. 391" court="Pa." date_filed="1900-04-16" href="https://app.midpage.ai/document/howard-v-union-traction-co-6245804?utm_source=webapp" opinion_id="6245804">195 Pa. 391, and Dutton v. Lansdowne Borough, 198 Pa. 563" court="Pa." date_filed="1901-03-18" href="https://app.midpage.ai/document/dutton-v-lansdowne-borough-6246175?utm_source=webapp" opinion_id="6246175">198 Pa. 563, was that of joining two or more defendants between whom there had been no concert of action, and under the allegation of a joint tort proving the separate torts of each defendant, and leaving the court or jury to select the party legally responsible. This left the case of the defendant against whom a cause of action was showm prejudiced by the proof of the wrongful action of others with whom he had no connection. Referring to these decisions in Wiest v. Electric Traction Co., 200 Pa. 148" court="Pa." date_filed="1901-07-17" href="https://app.midpage.ai/document/wiest-v-electric-traction-co-6246345?utm_source=webapp" opinion_id="6246345">200 Pa. 148, it was said by our Brother Potter : “Joining several parties as defendants without regard to the question of the tort being joint does no doubt relieve the plaintiff of the responsibility of finding out, before bringing his action, who is justly chargeable with the wrong causing the injury, as it leaves that question to be developed at the trial. The plaintiff may profit by the contention which naturally arises among the defendants, in which each seeks to charge the other. But such a course does not tend to an orderly trial, nor the attainment of justice. ... We are aware that it is thought that the effect of a misjoinder may be cured by taking a verdict against one defendant only, and authority is not lacking to support this view. But this remedy is not adequate. The mischief in unwarrantably joining as defendants parties who are not in fact joint wrongdoers, is in the confusion and disorder resulting at the trial, and the increased difficulty in arriving at a just verdict. It is not necessary to sue all the parties guilty of committing a tort; for joint wrongdoers are liable jointly and severally. And where a joint suit is brought against a number of defendants, if the evidence shows that one of the parties was not connected with the tort, a verdict or non-suit as to him is proper. A joint verdict may then be rendered against such of the defendants as are jointly liable.”

We have quoted at length from this opinion in order that its scope and effect should not be misunderstood. The point decided in these three cases was that where a joint tort is alleged, it must be proved, and that if the proof is only of a tort by one defendant or of separate torts by different defendants, the action cannot be sustained against any of them. In such cases the plaintiff may amend his declaration and proceed against the party liable under the proofs adduced, subject to the defendant’s right to a continuance, as has been pointed out in the recent case, of Rowland v. Philadelphia, 202 Pa. 50" court="Pa." date_filed="1902-03-03" href="https://app.midpage.ai/document/rowland-v-philadelphia-6246623?utm_source=webapp" opinion_id="6246623">202 Pa. 50.

The facts developed at the trial were these. One of the defendants, the Lancaster & Lititz Railway Company, was authorized by its charter to construct and operate an electric railway about seven miles in length. On the day its charter was obtained, it leased its property and franchises to the Pennsylvania Traction Company, another defendant, for 999 years. The traction company contracted with an individual for the building of the road, and he with the knowledge and approval of the company sublet the contract to the third defendant, the Lancaster Railway Construction Company, by whom the road was built. The consent of the plaintiff to the location of the railway on the public road on which his farms abutted was not obtained. The grounds of his complaint were that the railway was built on the public highway in front of his property without his consent; that in building the road his land was entered upon, soil and rocks removed therefrom, and his crops and fences injured; and that the cars are operated in such a reckless manner as to render ingress and egress to and from his farms in all places inconvenient and dangerous and in some places impossible.

The learned judge was of opinion, and we think rightly, that nothing had been shown to make the railway company responsible. It had lawfully procured and lawfully leased its franchises, and it was not liable for the failure of its lessee to obtain the consent of the plaintiff to the location of the road in front of his farms. He also held that for the invasion of the plaintiff’s private property and the destruction of his crops and fences, the construction company alone was responsible ; for the negligent operation of the road, the traction company alone was responsible; but that for the unlawful construction of the road, without the plaintiff’s consent, both the construction company and the traction company were liable, on the ground that one who procures an unlawful act to he done is equally guilty with one who commits it. In brief, against one of the defendants, nothing was shown; as to the other two, it was shown that each had committed a separate tort, and that together they had committed a joint tort.

On the ground that a joint tort had not been committed by all three of the defendants, a nonsuit was entered. This was error. The cases of Howard v. Traction Company and Dutton v. Lansdowne Borough, supra, are authority only for the proposition that where a joint tort is alleged it must he proved, and that in such a case the proof of separate torts will not warrant a recovery against any of the defendants. In this case a joint tort was alleged and proved as to two defendants but not as to all. As to the defendant not connected with the joint tort, a nonsuit might have been entered or a peremptory direction given the jury, and the case submitted as to the other two. This would have been in accordance with the rule on the subject as stated in the opinion in Wiest v. Electric Traction Co., 200 Pa. 148, that “where a joint suit is brought against a number of defendants, if the evidence shows that one of the pai’ties was not connected with the tort, a verdict or nonsuit as to him is proper. A joint verdict may then be rendered against such of the defendants as are jointly liable.”

The mistake in admitting irrelevant testimony as to separate torts could have been remedied by striking it out, or instructing the jury to disregard it. If its admission had done harm by prejudicing the case, there would have been ground for a continuance.

The judgment is reversed with a procedendo.