18 Pa. Super. 625 | Pa. Super. Ct. | 1902
Opinion by
The plaintiff in this case recovered a verdict from the city of Philadelphia, trustee of the estate of Stephen Girard, deceased, for damages for personal injuries inflicted through the negligence of the operator of an elevator in a large office building erected on land owned by the defendant as trustee, the net income from which was applicable to the maintenance and development of the charity provided for under the terms of the said will. By the verdict the negligence of the servant of the trustee was ascertained. The trial judge reserved the question, whether the plaintiff could recover because of the fact that the negligence was that of an employee of a trustee for charitable uses under the said will. On the motion for judg
The appellant bases his demand for reversal. on the ground that the estate of Stephen Girard is held solely for the purpose of a charity and that the estate is'not liable for the result of a tort by an employee of the trustee, since this would be a diversion of a part of the fund from the charity. The city has power to act as trustee of the Girard estate, since the purposes of the trust are germane to the powers of the municipality: Phila. v. Fox, 64 Pa. 169. The board of directors of city trusts, to whom the care of the Girard estate has been lawfully entrusted, is a department of the municipality: Girard’s Appeal, 4 Penny. 347. We, therefore, held in Fairbanks Co. v. Kirk, 12 Pa. Superior Ct. 210, that being such a department, a writ of attachment execution could not be issued. But in the case before us the powers and duties of the city of Philadelphia, trustee, are not limited to those inherent in a municipality as a governmental corporation, but find their origin and limitations in the terms of the will creating the trust. So far as this case is involved, therefore, the rights of the plaintiff and defendant are determinable practically in the same manner as if the trustee were an individual or private corporation.
By his will, Girard set apart certain of his real estate in Philadelphia, for the erection and maintenance of a college for the education of orphans. He further directed, by section 20, that his real estate in Pennsylvania should not be alienated by the trustee, but that it should forever thereafter be let to good tenants ; “ that the rents issuing and profits arising therefrom should be applied toward keeping that part of the said real estate, situate in the city and liberties of Philadelphia, constantly in good repair; . . . . and towards improving the same wherever necessary, by erecting new buildings, and that the net residue . . ... be applied to the same uses and purposes as are herein declared of and concerning the residue ” of the personal estate. By section 21, the testator provides that the residue of the personal estate shall be held in trust and applied to the erection upon the square of ground between High (now Market) and Chestnut streets, and Eleventh and Twelfth streets, in the city of Philadelphia, of a permanent college, which he proceeds to describe in detail. By a codicil to his will Girard
Taking these provisions of the will together, it is evident that the testator after changing the location of the college, set apart the square of ground between High (now Market) and Chestnut streets, and Eleventh and Twelfth streets, as a property to be so managed by the trustee as to be a source of profit, to the end that the net income arising therefrom should be applied to the uses of the charity. No indication, whatever, is given that this piece of property is to be used in any way for the direct purposes of the charitable trust. It is to be rented to tenants. It is, if necessary, to be improved, and the net money result of its management is to be devoted to charitable uses. In the absence of negligence shown to have been committed by the trustee itself, the results of negligent acts of servants necessary to the management of the property, (improved as authorized by the decedent) must be regarded as an incident to the management, and as chargeable among the items of cost of such management. Under section 24 of the will, it is the net residue which is to be applied to the purposes of the trust. Under the codicil, the intention of the testator is expressed to be that the ground “ shall be built upon and improved in such a manner as to secure a safe and permanent income” for the purposes set forth in the will. The word “in
From what has been said it should be plain that this case does not come within the application of the principle laid down in Fire Insurance Patrol v. Boyd, 120 Pa. 624, since here the city is acting under the terms of a will -which provides for the production of income from a source independent of the charity; and since the tort was not committed by the servant of the trustee in- carrying out the charitable trust. In the case referred to, the act of negligence, upon which the action was founded, was committed while the employees were engaged specifically and distinctly in the work for which the charitable organization was created. They were engaged in doing the very work which was the charity. In the case before us, the act of negligence was committed by one having no connection with the charity, save only that he was assisting in the work of making income from property not devoted to the charity.
Were the trustee of the Girard estate permitted to manage the real estate, as now improved, without liability on the part of the fund for the negligent acts of the servants necessary to the usefulness of the property, it would impose an unwarranted risk upon the public and upon the tenants. Such a condition would certainly result in injury to the trust itself, since tenants and frequenters would scarcely be attracted to a building with such extraordinary protection, against liability for negligent employees, thrown around its ownership.
The judgment of the court below is affirmed.
