Oliver v. Wheeler
1904 Pa. Super. LEXIS 250
Pa. Super. Ct.
1904
Check Treatment

Opinion by

Oklady, J.,

This action of trespass .was brought by Margaret Oliver against J. E. Wheeler and Eva J. Hill-Frey to recover damages for the value of a piano owned by the plaintiff, and seized and sold by J. E. Wheeler. The plaintiff recovered a verdict of *7$363.50. Miss Oliver was a boarder at the Phcenix Hotеl, conducted by Oliver English, and of which Mrs. Frey was the owner. There being rent in arrear, a landlord’s warrant was placed by Mrs. Frey in the hands of Wheeler, a constable, who levied upon a piano of the plaintiff’s, which was in a room in the hotel occupied exclusively by her. The constable was given immediate notice that she was but a guest of the hotel, and that the piano was her private property. Fourtеen days thereafter the constable broke open the door of Miss Oliver’s room, took out the piano and sold it.

This action of trеspass was brought jointly against the constable and owner of the hotel, though the statement does not allege that the seizure of the plaintiff’s goods was by virtue of a ‍​​‌​​‌‌​‌​​​‌​​​​‌​‌​​​​​‌‌‌‌‌​​‌‌​‌​​‌​​‌​‌‌​​​‍landlord’s warrant, further than to suggest that, “ The said Wheeler, at the instance and request of said Frey, did sell, take awаy and convert unlawfully and illegally the said piano.”

On the trial there was no attempt made to justify the seizure under a landlord’s warrant. No lease was offered in evidence; no rent was shown to be in arrear; no landlord’s warrant or notice of distress or appraisement were offered, nor was the?e any denial that the property sold belonged exclusively to the plaintiff, who was a boarder in the hotel. The appellant urged that this action of trespass was erroneously brought and that the action should have been in replevin. Therе is nothing in this record to suggest any vindication of the defendant’s conduct under a landlord’s warrant.

It was held in Brown v. Stackhouse, 155 Pa. 582, “ That a landlord who distrained upon goods, knowing them to be the property of another, left with a tenant for sale on commission, is a trespasser ab initio, and is liable to the owner of the goods in the action of trespass.”

As the proceedings by which landlord seizes goods under a distraint for rent, are statutory, the direction of the statute must be strictly followed or its protection will be lost. If the seizure ‍​​‌​​‌‌​‌​​​‌​​​​‌​‌​​​​​‌‌‌‌‌​​‌‌​‌​​‌​​‌​‌‌​​​‍is irregular, it is trespass; if the seizure is regular, but the subsequent steps are not in accordance with the- statute, the landlord becomes a trespasser ab initio: Snyder v. Boring, 4 Pa. Superior Ct. 196. As far as the liability for a tortuous salе is concerned it is immaterial whether the property be*8longs to a tenant or to a stranger: Hazlett v. Mangel, 9 Pa. Superior Ct. 139; Harris v. Shaw, 17 Pa. Superior Ct. 1. The goods of a boarder are not liable to be distrained for rent due by the keeper of a boarding house: Riddle v. Welden, 5 Wharton, 9; Karns v. McKinney, 74 Pa. 387; Myers v. Esery, 134 Pa. 177. The constable’s forcible entry into the room and the tortuous taking of the piano wеre without warrant of law, ‍​​‌​​‌‌​‌​​​‌​​​​‌​‌​​​​​‌‌‌‌‌​​‌‌​‌​​‌​​‌​‌‌​​​‍and a landlord’s warrant would be no protection for such conduct. The action was properly brought in, trespass.

The appellant’s second contention is that the two defendants were sued jointly in trespass, and there could not be a recovery against one when there is no evidence to submit to the jury as to the other. The record discloses the fact that at the conclusion of the testimony, there was no evidence to submit to the jury affecting Mrs. Frey as a trespasser, and counsel for the plaintiff so stated and requested that the case be submitted to the jury as to Wheeler alone. To this the court assented, and, as shown by the charge of the court, the consideration of the jury was limited to the claim of the plaintiff against J. E. Wheeler.

The course of the trial and the evidеnce offered clearly showed that the plaintiff was not seeking to recover a verdict against Mrs. Frey, but that her claim was confinеd exclusively to Wheeler. An amendment of the statement would, undoubtedly, have been permitted if it had been made at that time. The defendаnt was not in any way surprised, and had a full and fair trial on the merits. This was conceded on argument at bar in this court, and an amendment of the statеment was allowed to be filed nunc pro tunc. This has been frequently been done and is recognized as an established practice. In Trеgo v. Lewis, 58 Pa. 463, it was held that: “Amendments which tend only to defend the interests of justice are not only proper but necessary, and should always be allowed. The legislature is leading the way to the making of amendments of the most Arital character; ‍​​‌​​‌‌​‌​​​‌​​​​‌​‌​​​​​‌‌‌‌‌​​‌‌​‌​​‌​​‌​‌‌​​​‍altering names, changing and adding names of parties and eA'en striking out parties, who were named, have been included. It becomes us to keep pace with legislative rеforms instead of lagging in its rear.” Cohn v. Scheuer, 115 Pa. 178.

In Brown v. Commonwealth, 78 Pa. 122, an indictment *9was found in the quarter sessions, but entitled in the oyer and terminer where it was tried, and the Supreme Court hеld that the caption might be amended after trial, conviction, sentence, and writ of error, and before the record had been returned. The court said: “ Where the court has the power, and exercises it properly, this court will not inquire into the state of the recоrd before the return of the writ, but will look only at its conditions when returned in obedience to the writ. If then it appears to be regular its previous condition will be disregarded. Our province is not to look for errors merely to reverse, but to look for merits in the case of reversal; and when we find that the court below has done no more then it could rightly do, and when what it did infringes no right or substantial interest of the prisoner, we ought nоt to send back for retrial, a cause fully, fairly and justly determined. W e think this assignment of error, when examined, is found to be without substantial merit. The day of mere technicality has passed, and the courts should look more at substantial justice than artificial nicety: Commonwealth v. Keenan, 67 Pa. 203; Girts v. Commonwealth, 22 Pa. 351. See also 16 P. & L. Dig. of Dec. col. 27,663-27,665.”

Appellant relied upon Wiest v. Traction Company, 200 Pa. 148, which was supposed to work radical changes in the practice theretofore recognized, and in regard to which the Supremе Court said in Rowland v. Philadelphia, 202 Pa. 50, “It was not, however, intended to intimate that a mistake in bringing a joint action could not be cured by proper amendment. The thought ‍​​‌​​‌‌​‌​​​‌​​​​‌​‌​​​​​‌‌‌‌‌​​‌‌​‌​​‌​​‌​‌‌​​​‍was not fully developed but the conditions presented emphasized the necessity for amendment.” And in Minnich v. Electric Rаilroad Co., 203 Pa. 632, referring to Howard v. Union Traction Company, 195 Pa. 391, Dutton v. Lansdowne Borough, 198 Pa. 563, and Wiest v. Electric Traction Company, supra, the Supreme Court says: “ The point decided in these three cases was, thаt where a joint tort is alleged, it must be proved, and 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 of a continuance.” See Goodman v. Coal Township, 206 Pa. 621.

*10• The landlord was eliminated from the case by a practical amendment of the plaintiff’s claim before it was submitted to the jury, and the verdict was confined to the only wrongdoer. The assignments of error are not sustained, and the judgment is affirmed.