149 Pa. 29 | Pa. | 1892
Opinion by
This was an action of trespass quare clausum fregit brought by George M. Whitney and Lucinda M. Whitney against Alfred Short, William C. Culbertson, Roscoe A. Davidson, Andrew M. Backus, and Edwin J. Dodge, doing business as the Penn Lumber Co., Limited, to recover the damages allowed by § 3 of the act of March 29, 1824, Pur. Dig. 1635, for cutting timber trees without the consent of the owner. It resulted on the trial in the court below in a verdict and judgment of $100 against Andrew M. Backus, who is the appellant here.
The instruction complained of in the first specification of error is in accord with well settled principles applicable to cases of this kind. McCloskey v. Powell, 123 Pa. 62, and 138 Pa. 383, is the latest ease on the subject which we now recall, and it sufficiently vindicates the affirmance of the appellee’s sixth point. We fail to discover error in the refusal of the appellant’s third point. There was no evidence that A. J. Culbertson from whom Lorett Leavitt received a deed in 1839, had title to the land in dispute, or possession of it, at any time. The possession of Leavitt, as described by his son, and the conveyances
A joint stock association, organized and managed in strict compliance with the provisions of the act of June 2, 1874, P. L. 271, and the supplements thereto, has many of the qualities of a corporation. It has an association name, in which it must sue and be sued, and take, hold, and convey the real estate purchased and sold by it. Its operations are carried on through officers or agents, and it is responsible for their torts committed within the scope of their employment and in the prosecution of its business. The liability of its members for
Warren Cole, a witness for the appellees, testified as follows : “ Q. State whether or not, at one time, you were superintendent, or what position you held with the Penn Lumber Co. ? A. I was foreman of the works. Q. From what time on ? A. From the first of March, 1883 ; I was there five years. Q. What do you know about who cut the timber, and at whose order it was cut, east of the creek? A. I cut it myself ; I ordered it cut. Q. For whom ? A. The Penn Lumber Co.”
When he was called by the appellant, and in answer to the question, “you were superintendent of this property for a time before Mr. Pierce?” he said, “Not exactly superintendent; I was foreman there. When I first went there Mr. Backus was superintendent.” “ Q. When were you superintendent there ? A. I went there March 15, 1883.”
The appellant testified, on cross-examination by the appellees, as follows: “ Q. You were a member of the Penn Lumber Co., one of the firm? A. Yes, sir. Q. Until Mr. Pierce went there ydu were up there most of the time ? A. Yes, sir. Q. You had charge until he went there in 1883, in June ? A. Not all the time. Generally I had, when I could be there.”
It is suggested that an admission of the trespass is contained in the pleadings. We do not think so. The pleas of not guilty and liberum tenementum put the plaintiffs on proof of their possession, and of the trespass described in their declaration.
The 1st, 2d and 4th specifications of error are overruled, and the 3d and 5th are sustained.
Judgment reversed.