WEEKLY NOTES OF CASES VOL. XL.] FRIDAY, JULY 30, 1897. Supreme Court. Jan. '96, 242. Supreme Court. [No. 20. February 1, 1897. Miller v. Lehigh County et al. Form of action-Amendment-Right of recovery- Where the action is in trespass, but the injury is consequential, at common law, the remedy should have been in case; but the Act of May 25, 1887, was intended to, and did, effect a radical change in the common law upon this subject, and a recovery may be had in an action of trespass, although the injury sustained was formerly reme diable only in case. Duffield v. Rosenzweig, 144 Pa. 520, followed. by a public road which passed at a point near there on to the Lower Catasauqua bridge. On the west there was also a public road; on the south the boundary is ground of Johnson, and on the east it is the Lehigh Valley railroad, which there runs close to the west bank of the Lehigh river. This whole lot was of the dimensions of about 500 feet more or less in length and of a depth of perhaps something less than 200 feet. The length of it was along the road on the west side, and on it near the north end was a brick dwelling house which is called the homestead or mansion house in this case. And near the south end there was a block of five dwelling houses; it seems there was not very long ago a barn just south of the mansion house. "Before 1892 there was a bridge over the Lehigh river which was a county bridge, sometimes called Biery's bridge-that was the old name of it-later known as the Lower Catasauqua bridge. The public road leading over that bridge crossed the tracks of the Lehigh Valley railroad immediately at the west opening of the bridge and at grade. The public road from the Appeal of the County of Lehigh, defendant. bridge then ran with ascending grade to the from the judgment of the Common Pleas of Le-northwest corner of Mrs. Miller's lot which was high County, in an action by Sarah A. Miller on the south of it, immediately. Then the road against the Allentown and Bethlehem Rapid turned a corner to the south and continued on Transit Co., the Lehigh Valley Railroad Co., the towards Allentown, and that has been called the County of Lehigh and the Township of White- Allentown road. It turned to the north at said hall. northwest corner and there the public road ran The facts of this case are thus stated in the up near the river Lehigh on the west side of it. charge of the Court, ALBRIGHT, P. J.: At that time what is now called Bridge street to the westward and shown by the drafts did not exist. It was a lane, quite narrow at places. Since that time it has been opened and is now on the map as Bridge street. "The law provides that county bridges may be ordained. Where there is an application for a county bridge certain proceedings shall be had, and if finally the Court, the grand jury and the then a county bridge is ordained, and then it is county commissioners approve of the proposition not only the privilege, but it is the bounden duty of the commissioners to build it. "In the issue you are trying Sarah A. Miller is plaintiff and the Allentown and Bethlehem Rapid Transit Company, the Lehigh Valley Railroad Company, the County of Lehigh, and the Township of Whitehall are defendants. The plaintiff alleges that by reason of the raising of the grade and the filling up of the public road which runs immediately along certain real estate which she owns in Whitehall township, her property was injured and for that injury she seeks to recover compensation in this case. The action was originally brought against the Rapid Transit "Before 1892 there was a public county bridge Company. Afterwards by the order of the Court at this point, but because the proposed new structhe other parties, the railroad company, the town-ture was to be different, and for reasons which it ship, and the county also were made defendants. is not necessary to explain to you there was a "As has been said within your hearing, as the is- proceeding for a county bridge at this point, and sue now stands the only question is between the the proceedings were substantially the same as plaintiff and the county of Lehigh; against the if no bridge had been there. Well, in 1892 it was other three defendants and no one of them, can ordained that there should be a county bridge there be a recovery. built on the site of the old bridge. "It appears that long before 1892 the plaintiff "The Allentown and Bethlehem Rapid Transit was the owner of a tract of real estate in White- Company had the right to build an electric railhall township, which was bounded on the north road or a passenger railway from Allentown to Catasauqua. The law provides that before any it has been said here in your hearing that the road in a township is occupied for a passenger county is indemnified by the transit company. railway the permission of the township represen- That has nothing to do with the case, because tatives or supervisors must be obtained. That the county must pay whatever verdict, if any, that privilege was obtained by the Rapid Transit Com- you find in this case in favor of the plaintiff, and pany from the supervisors of Whitehall town- then it is a further matter for them to consider ship, and so they then had the right to lay their as to whether they can recover against the transit tracks on the public road in question. That com- company. That has nothing to do with this case. pany desired to use the proposed new bridge to And even if the transit company was liable and cross the river and reach Catasauqua. The Le-your verdict could be against it here, then of high Valley Railroad Company was interested course as iair and just men you would find the because the wagon road immediately at the end came way and consider the case in the same way of the bridge crossed their tracks, and it was a as if the county or a single man was defendant. very dangerous crossing, because people driving Courts of justice don't give higher verdicts or along there from either direction could hardly decline to give higher verdicts because they hapsee up and down the road in a way to feel safe pen to like or dislike the party against whom in crossing. The Lehigh Valley Railroad Com- the verdict is to be rendered. pany was willing and no doubt anxious to have "In the making of the approaches to this new that grade crossing abolished. So they were con- bridge, the road along the north side of Mrs. sulted with regard to the construction of the Miller's lot was filled up quite a height. Before bridge, and it was finally agreed between the the improvement was made the lot was higher commissioners and the railroad company and the than the road. On the west, 100 feet or so south transit company that the bridge should be raised of the corner of the Allentown road the declinasomething like 21 feet immediately above the tion of the public road to the north began, and tracks of the Lehigh Valley Railroad, and that the in front of the house it was two or three feet rapid transit company should have the right to lower than the lot. When the road reached the lay tracks on the bridge; in consideration of that corner where it made the turn towards the bridge the transit company agreed to pay a certain sum it was, as most of the witnesses say, about five of money towards all the expenses of the bridge, feet lower than the lot, and when it reached the and also to buy such land as might be necessary neighborhood of the tracks of the Lehigh Valley -additional land to make the approaches-because you observe that raising the bridge the height I have mentioned-rendered it necessary to fill up at the west end of the bridge so that the people could conveniently get on to this high bridge; and the Lehigh Valley Railroad agreed that they would build that part of the bridge over "Mrs. Miller sold off a lot 20 feet wide running their tracks, and the necessary additional abut- from the street on the west down to the Lehigh ments, and that they would fill up the approaches Valley Railroad, and on that lot south of the to the bridge on the west, but they stipulated bank the railway company put up a building which that by doing so they should not be liable to any is called a waiting room. As to the situation of claim for damages by land owners. The wisdom the property, the changes and the improvements, of this arrangement has nothing to do with the but little need be said by way of explanation to case; but it must appear to everybody that this you, because by consent of counsel and in their was a prudent and wise arrangement by the presence you went on the ground before this trial county commissioners; because the construction was commenced, and you understand the lay of of the passenger railway on a street is not alto- the land and the situation perfectly. gether for the benefit of those who own it; it is "Now, gentlemen, if Mrs. Miller, as the owner a benefit to the public. One way of using a public of the property I have referred to, was injured street is to ride in the cars that may be upon it; by the improvement, her remedy is against the it is evident this was a wise and prudent arrange- county of Lehigh. Private property may be taken ment, and not only good for the companies, but for public use. If in building a railroad or a good for the public, and the bridge was built ac- street in a city or borough, or a road in a towncordingly. ship, or a bridge by the township or county it is "The filling of these approaches at the west necessary to take land belonging to some other that we are concerned with in this case was done party, the public has a right to take that land by the Lehigh Valley Railroad Company. And and is not a trespasser.” Railroad the lot was 8 or 10 feet higher than the old road as it was. In making the approaches all this distance that the road was formerly lower than the lot and perhaps a little further to the south, there was a filling in of it and a raising of the grade. At the trial the jury found in favor of the plain-fregit. It may well be asked whether the name tiff, in the sum of $1400, and by direction of the added, viz: The county of Lehigh, had any conCourt, in favor of all the defendants, except the nection with such an action, or with the subject county of Lehigh. A motion for a new trial was matter-a tort. overruled. Whereupon this appeal was taken and the following errors assigned: All the authorities proceed upon the idea of an addition or withdrawal of a party. None may "1. The Court erred in overruling the first be found where a new party is substituted and point of the county of Lehigh, as follows: Under the original party relieved, and a trial had in a all the evidence the verdict must be in favor of different form of action, for a different subject the defendant, the county of Lehigh." "2. The Court erred in overruling the fourth point of the county of Lehigh, as follows: There was no evidence of any joint liability or tort, and the defendant the county of Lehigh, being simply added and brought in after the inception of the suit, there can be no verdict against the said county of Lehigh." as matter. Cochran et al. v. Arnold et al., 58 Pa. 399. John Rupp, (Marcus C. L. Kline with him), for appellee. There are no assignments of error to the action of the Court either in allowing the amendment or in entering judgment on the special verdict. "3. The Court erred in charging the jury At the trial the Court instructed the jury that the follows: A question has been raised before the plaintiff, under the evidence, could not recover Court and the ruling of the Court has been re- against any of the defendants, except the county quested as to whether in this action there can of Lehigh, and the case was submitted to the be a recovery against the county of Lehigh be-jury against the county alone. Counsel for the cause the county of Lehigh was not sued in the county requested the Court to instruct the jury beginning, and because the transit company was that under the evidence and the pleadings there sued for what would have been an unlawful act could be no recovery against the county, which on its part if it had done what was alleged, to was refused. The correctness of this action of wit, the filling up and the entering on the plain- the Court is challenged by the assignments of tiff's property. This point we decide against the error. It is admitted that the county is liable for county, and we instruct you that if the plaintiff the damages for which the plaintiff was allowed has suffered injuries by reason of that which you to recover judgment, but it is contended that can consider on that point you can find against the county of Lehigh. I instruct you that there can be no finding here against the transit company, nor against the township, nor against the Lehigh Valley Railroad. The county of Lehigh before verdict excepts to the charge of the Court and the answers to points, and for it a bill is sealed.'" Thomas F. Diefenderfer, (C. J. Erdman with him), for appellant. there can be no recovery in this action, because the suit was not originally brought against the county, and the county alone. That the county is liable in a proper action, has been definitely settled in County of Chester v. Brower, 117 Pa. 647. Whenever it shall appear that a mistake or omission has been made in the name or names of any party to an action, the Courts are authorized by the Act of May 4, 1852, in any stage of the proceedings to permit amendments. Statutes relating to amendments are liberally construed in furtherance of trial upon the merits. Fidler v. Hershey, 90 Pa. 363. Wood v. Phila. 27 Id. 502. In this case suit was instituted against the Allentown and Bethlehem Rapid Transit Company and subsequently the Court permitted to be added the names of the Lehigh Valley Railroad Company, the township of Whitehall and the county of Lehigh. After many mutations and several days trial, it all ended in the Court permitting By the Act of May 25, 1887, all distinctions bethe county to be held liable and exempting the tween the two kinds of action are abolished, and it original defendant, and the other associates. It is provided that all damages theretofore recoverresulted in the trial of a case between different able in actions of trespass, trover, and trespass parties, having no relation to the original parties, on the case, shall thereafter be recoverable in one or the subject matter in dispute, and for an en-form of action, to be called an action of trespass; tirely different cause of action. This we believe is not embraced within the powers given the Courts to exercise, by the Act of May 4, 1852, P. L. 574 Leonard and wife v. Parker et al., 72 Pa. 236. and that the only action the plaintiff could bring was that of trespass. Duffield v. Rosenzweig, 144 Pa. 520. July 15, 1897. GREEN, J. The learned counsel The original suit was trespass quaere clausum for the appellant, with entire candor, concede that if the plaintiff suffered damage and had brought Eo die. MITCHELL, J., dissenting. I am unable an action of case instead of an action of trespass, to concur in this judgment. It sanctions a change the county would be responsible. This was cer- which is not an amendment at all, but a substitainly ruled by this Court in County of Chester tution of a new cause of action against a new v. Brower, 117 Pa. 647. But they contend that party-a perversion of the statutes of amendment no recovery can be had in an action of trespass going far beyond any precedent however liberal. and they complain that the county was brought It is no answer to say that the county appeared in by way of amendment, not having been made and thereafter is estopped from denying that it a party at the inception of the suit. So far as was a proper party. It had no choice in the matthe amendment as to parties is concerned it is ter. It was served with an alias summons, and not before us, because no assignment of error pleaded under protest after the Court had overhas been made on that ground. But the county ruled its objection to being made party by the was brought in by means of an alias summons | so-called amendment. These facts appear on the duly served, and appeared by counsel and pleaded face of the record and are brought before us by to issue, and went to trial on the merits. There- the second assignment of error. The appellant after it could not be claimed that the county was may be liable for damage done to plaintiff, but not duly a party and bound by the proceedings. that fact should be ascertained by a proper acWe do not concede that the amendment was not tion properly brought against it. properly granted, but it is not necessary to discuss the question for the reason above stated. The only matter seriously discussed by the ap W. C. S. Supreme Court. May 20, 1897. Wilhelm's Assigned Estate. Wilhelm's Appeal. Assignment for benefit of creditors-Sale of collateral-Interest on liens-Distribution among creditors. estate sold by order of the Court, was received more than sufficient to pay in full the judgment of $15,000, with interest. No application of the money from these sales was made by the C. Co., but before the auditor it claimed and was awarded interest in full to the date of distribution: Held, that the amount realized from the sale of the collateral should have been credited immediately on its receipt, and that received from the sale of the real estate on the confirmation of the sale, so as to stop the running of interest to the detriment of the other creditors. pellant is the right to recover in the present form Jan. '97, 185. of action. It must be conceded that there would have been much force in the appellant's contention prior to the passage of the procedure Act of May 25, 1887, P. L. 271, abolishing all distinctions between trespass and case. But in the case of Duffield v. Rosenzweig, 144 Pa. 520, we held that the effect of the Act of 1887 was to abolish the distinctions between these actions and that W. made an assignment of all his property for the bene a recovery might be had in either form. Mr. fit of creditors to the C. Co., which company held his Justice CLARK, delivering the opinion, said: "We promissory note, payable on demand for $15,000, and as collateral security, certain stocks and a judgment for $15,are of opinion that perhaps an action of trespass ooo, which was the first lien on his real estate. The sale technically so called, could not have been main-of the collateral realized $1,662.08; and from the real tained, but by the Act of May 25, 1887, P. L. 271, the distinctions theretofore existing between actions of trespass, trespass on the case and trover, so far as they relate to procedure, were abolished, and although the plaintiff's statement sets forth his claim as in trespass, we cannot, in view of the provisions of the statute, distinguish in the form of the procedure one from the other. If the facts establish his right to recover in either form, therefore, he is entitled to judgment." It is true Appeal of Isabel S. Wilhelm and Sarah H. C. in the present case the action is in trespass, but Wilhelm, from the decree of the Common Pleas the injury is consequential, and therefore at com- of York County, dismissing exceptions and conmon law the remedy should have been in case. But the Act of 1887 was intended to, and did, effect a radical change in the common law upon this subject, and as held in the above cited case, a recovery may be had in the action of trespass although the injury sustained was formerly remediable only in case. As to the fact and quantum of the injury the verdict is conclusive. The assignments of error are not sustained. Judgment affirmed. firming the report of the auditor distributing the balance on the account of the Commonwealth Guarantee, Trust and Safe Deposit Company, assignee of J. Schall Wilhelm, under a deed of voluntary assignment for the benefit of creditors. Exceptions to the report of the auditor, to whom the account of the assignee was referred, were dismissed by the Court, and the report confirmed, in the following opinion by STEWART, J., in which the facts are set forth: "J. Schall Wilhelm assigned for the benefit of creditors on the 11th day of September, 1893. At and the bond referred to in this collateral note the date of the assignment he was the owner of is the bond of December 7, 1892, on which said real estate in Dauphin, Lebanon, York and Cam-second judgment was entered. It is to the amount bria counties, Pennsylvania, and in the State of of interest computed on this judgment that the Nebraska. principal exceptions are filed, and upon which "Prior to the assignment judgments had been the main contention is based. entered against him as follows: LEBANON NATIONAL BANK) TIONAL BANK for the use ν. J. SCHALL WILHELM. No. 510, Sept. Term, 1893, "After the assignment, which was made to the Commonwealth Guarantee, Trust and Safe Deposit Company, the holder and pledgee of the collaterals, it sold them as pledgee and after paying the notes for which they were originally held there remained in its hands the sum of $1662.08. The exceptant contends that as the pledgee held these collaterals for the same debt as that for "This judgment was the first lien on the defen- which the judgment bond was given, it should dant's real estate in Lebanon and Dauphin coun-have immediately applied this sum of money in ties. liquidation of that debt to stop interest and in relief of the lien on the real estate. COMMONWEALTH GUARAN-) υ. No. 513, Sept. Term, 1893, "It is also contended that the auditor erred in entered Aug. 31, 1893, for $15,000 and as shown by his computation of interest (2d exception) on the the record with interest judgment bond. The auditor computed the infrom December 7, 1892. terest on the note for which the bond was given "This judgment was the second lien in Dau-as collateral from May 1, 1894, the date to which phin and Lebanon counties; and the first in York and Cambria counties. J. SCHALL WILHELM. ISABEL S. WILHELM V. No. 522, Sept. Term, 1893, interest had been paid, to March 15, 1897, the day of the distribution, to ascertain the amount of debt and interest then due thereon; he then computed interest on the $15,000 judgment from May I, 1894, the same date as the note to which it stood as collateral,, to September 5, 1895, the day No. 523, Sept. Term, 1893, of the final confirmation of the sale of the assignor's real estate, for the purpose of ascertaining its value as collateral, and the amount was ISABEL and SARAH H. C. No. 524, Sept. Term, 1893, found to be $16,210; this was a correct compu J. SCHALL WILHELM. SARAH H. C. WILHELM ย. J. SCHALL WILHELM. WILHELM'S use υ. J. SCHALL WILHELM. and also entered in York and also entered in York "The last three judgments were entered contemporaneously in the three counties, Dauphin, York and Lebanon, and constituted the third lien on the real estate, which was sold under an order of Court and the sale confirmed September 5, 1895. "The principal controversy arises between these last three judgments and the second of the Commonwealth Trust Company immediately preceding them. This company had loaned to J. Schall Wilhelm money on certain notes and had received collaterals therefor among which were the collaterals hereinafter mentioned. tation and not open to the objection made in the second exception. "The trust company's claim then stood thus: Deduct amount of its claim. 17,902 30 $ 397 50 $17,902 30 "On March 13, 1893, J. Schall Wilhelm gave to the Commonwealth Trust Co. his certain other collateral note dated that day, agreeing to pay on demand $15,000, and in said note recited that he "Thus it will be seen that the collateral held deposited therewith judgment bond for $15,000; and the dividends awarded exceeded the amount 45 shares Central Iron Works and 155 shares of its claim by $397.50. Of course it was only Charles L. Bailey & Co., Inc. These were the awarded sufficient out of the real estate fund to same collaterals which he had previously pledged make up the amount of its claim, and the remain |