Fry v Brubecker.

Trespass Municipal Officer-Official Inspection-Tenement House-Act of March 25, 1903, P. L. 54.

The Act of March 25, 1903, P. L. 54, relating to municipal corporations of the second class, creates the office of tenement house inspector, "whose duty it shall be to regularly inspect the tenement houses within this act and to see that the requirements therefor are enforced," sc that the owner of a tenement house was held liable in damages to an inspector who was injured by the breaking of stairs leading to a cellar while in the performance of his official duties. A municipal inspector required to go upon private property by statute in the performance of his duty is not a trespasser and the owner owes him ordinary care, otherwise he is liable in damages for injuries incurred by an inspector while on the premises.

Motion for Judgment Non Obstante Veredicto. No. 835 July Term, 1918. C. P. Allegheny County.

Joseph R. Conrad, for plaintiff.

J. M. Shields, for defendant.

Before SHAFER, KLINE and MACFARLANE, JJ.

MACFARLANE, J., March 27, 1920.-Plaintiff recovered a verdict for damages for personal injuries received by the breaking of stairs leading to a cellar in the defendant's "tenement house" in the City of Pittsburgh, and it is claimed by counsel for the defendant that he was a mere licensee, to whom the owner was not liable for negligence in the maintenance of the stairs.

The Act of March 25, 1903, P. L. 54 (3 Purdon, 3036), relating to municipal corporations of the second class, creates the office of tenement house inspector, "whose duty it shall be to regularly inspect the tenement houses within this act to see that the requirements therefor are enforced. The house was a tenement house within the definition in Section 1 of the Act of March 30, 1903, P. L. 110 (3 Purdon, 3066).

A complaint was made to the office of the inspector as to unsanitary conditions and he went to the building to make an inspection.

*

It is to be noted that the house was not an ordinary private dwelling, and that Section 9 of the Act of March 25, 1903, requires that "every tenement house and every part thereof shall be kept in good repair and shall be clean and free from any accumulations of dirt, filth, garbage or other matter in and on the same ** The plaintiff was undoubtedly engaged in the performance of his duty and was on the premises by right and was, therefore, not a trespasser. In Ruling Case Law, Vol. 20, page 61, it is said. "The decisions appear to be somewhat indefinite with respect to the status of public officers to enter upon premises in the discharge of duties imposed upon them by law. Some cases seem to warrant the statement that they are to be deemed, so far as the liability of the owner or occupant for negligence is concerned, not trespassers or licenses, but persons rightfully on the property. On the other hand, it has been asserted that at common law the occupier of premises is not under a duty of active diligence to protect from harm a person who enters on the premises under a license from him or under one given by the law." The case cited for the last statemnt is Drake v Fenton, 237 Pa., 8, to be hereafter discussed. The editors suggest a distinction between officers who go upon property in their regular course of the business conducted thereon and whose presence may be deemed to be contemplated and known to the owner or occupant, and those public officers who enter, not under any pre-arranged scheme, but as the result of extraordinary and unforeseen circumstances, and they state that engineers, inspectors and others performing prescribed and regular duties generally, have been held to enjoy the status of persons

Fry v Brubecker.

entering by invitation, citing, inter alia, Pickwick v McCauliff, 193 Mass., 70. They also call attention to the decision that firemen or police officers are merely licensees, as the element of invitation is lacking. The firemen are on the premises in discharge of a public duty which they owe to the public, and not in discharge of any private duty to the occupant, and that the only duty to a police officer is to refrain from wilful or wanton injury upon him.

Shearman and Redfield on Negligence (Ed. of 1913), Vol. 3, Sections 705 and 705-a, state the generally accepted rule that the owner of real property is not liable to persons who enter under a mere passive acquiescence, but make substantially the same statement as that in Ruling Case Law, that no general rule can be adduced from the cases as to the liability of owners to public officers injured while in the discharge of public duty. Massachusetts cases are cited where a policeman entered, as his duty required, a building whose door he found open, and another where a policeman entered to quell a disturbance, and recoveries were permitted, and cases from other jurisdictions where, under similar circumstances, it was held that there was no liability. The authors give their opinion that the fiction should be that of implied invitation rather than implied permission, and that the owners owe them the duty of reasonable care. In Section 706, it is said that an invitation is implied where the person going on the premises does so in the interest or for the benefit, real or supposed, of the owner, or where he is present in the performance of official duty.

In Drake v Fenton, supra, the statement above referred to was made that at common law the occupier is not under a duty of active diligence to protect from harm a person who enters on the premises under a license from him or under one given by the law, and continues that if there was any liability it was because of failure to comply with the Act of April 25, 1903, P. L. 309, to regulate the construction, maintenance and inspection of buildings, and requiring certain guards and trap doors. It was held that the plaintiff, a fireman entering a warehouse for the purpose of extinguishing fire, was within the protection of that Act. This is not a decision controlling this case. The dictum is very broad, and the common law is not uniform in all jurisdictions. In another case, resurrected by text writers from its burial in "not to be reported decisions" in 16 Atlantic Reporter, 43 (Woods v Lloyd), it was decided that the owner of a lot, bounded on one side by a street graded to thirty-eight feet below the general level, was not liable for the death of a policeman, who, in pursuit of a disorderly person, fell over the bank. The non-suit was affirmed by the Supreme Court without an opinion and the case is authority only for the ruling on the facts.

The defendant owned and leased her tenement house subject to the requirements of the statutes, and expressly subject to regular inspection by a public officer, and the condition of her using the building in this way was that the plaintiff not only could but must visit it, and she owes him the duty of ordinary care. We do not have to create the fiction of an implied invitation, and it is not a license.

If there are any decisions of our appellate courts to the contrary, they have not been found by counsel and our careful search does not disclose any.

ORDER.

March 27, 1920, motion for judgment n. o. v. is overruled, and it is ordered that, on payment of the verdict fee, judgment may be entered on the verdict.

South Pittsburgh Water Co. v Winterberger.

Pleading and Practice-County Court Rule No. 6-Power of the Court..

Under Rule 6 of the County Court, which reads: "In actions ex delicto the Court shall, cn or after the time for hearing fixed by the summons, enter such judgment as may be proper, after examination of the plaintiff's statement, or after hearing such evidence as may be necessary for the proper disposal of the case. If an answer be filed as aforesaid, all material averments of the plaintiff's statement which are not denied by the answer shall be admitted and taken to be true, provided, however, that in all cases the Court may, for proper cause, required either party to file a bill of particulars," the Court had a right on a rule for judgment for want of a sufficient statement to allow an amended statement. It was not required to discharge or make absolute this rule without qualification, being the best exponent of its own rule.

Certiorari to County Court. No. 1630 October Term, 1919. C. P. Allegheny County.

Chas. A. Woods, for plaintiff.

Frank I. Gosser and R. P. Lewis, for defendant.

Before CARPENTER and COHEN, JJ.

COHEN, J., March 8, 1920.-This proceeding is based on a certiorari to the County Court, and was an action in trespass, a trial by jury having been demanded thereon. The suit was for alleged damages. Plaintiff below took a rule for judgment for want of a sufficient statement, agreeably to Rule No. 6 of the said Court, specifying his reasons therefor. The rule was argued by counsel on both sides and the Court made the rule absolute, unless plaintiff within ten days filed an Amended Statement. Plaintiff below accordingly filed an Amended Statement, to the sufficiency of which the defendant did not except.

Exceptions were filed to the said ruling and defendant moved to strike out the proviso permitting an Amended Statement, contending that the rule should have been made absolute or discharged without qualification, for the reason that the Court had no authority to make such a qualified ruling. These exceptions were argued and "overruled and dismissed." To this order exceptions were asked and allowed. Plaintiff-in-error argued that the County Court had no authority so to do and that it was a violation of its own Rule No. 6, inasmuch as it added a condition which was not within its power to make.

The rule in question provides:

Rule 6 aforesaid applies to all questions formally raised by demurrers has been demanded by either party, any party considering himself entitled to judgment on the face of the pleadings may move the Court for entry of such judgment, specifying in writing his reasons for such motion, of which two days' notice shall be served on the adverse party."

We are of opinion that the Court had full power to allow an Amended Statement or to make such order as "may be just." The Act of May 5, 1911, Sec. 7-C, as amended by Acts of April 2, 1913, P. L. 23, and June 25, 1913, P. L. 545, creating the County Court and defining its powers, reads in part as follows:

"In actions ex delicto the Court shall, on or after the time for hearing fixed by the summons, enter such judgment as may be proper, after examination of the plaintiff's statement, or after hearing such evidence as may be necessary for the proper disposal of the case. If an answer be filed as aforesaid, all material averments of the plaintiff's statement which are not denied by the answer shall be admitted and taken to be true, provided, however, that in all cases the Court may, for proper cause, require either party to file a bill of particulars."

South Pittsburgh Water Co. v Winterberger.

Rule 6 aforesaid applies to all questions formally raised by demurrers and to rules for judgment for insufficient answers. The County Court follows the Practice Act of 1915, Sec. 20, in which it is provided that"the defendant in the affidavit of defense may raise any question of law without answering the averments of fact in the statement of claim, and any question of law, so raised, may be set down for hearing, and disposed of by the Court. If, in the opinion of the Court, such question of law disposes of the whole or any part of the claim, the Court may enter judgment for the defendant, or make such other order as may be just."

It is conceded that the Courts are the best exponents of their own rules, within the reasonable limitations of such rules. We regard the action of the Court below as being in accordance with "what is just" and did not violate the said rule. What, under the circumstances of each case, is "just" is left to the Court to determine.

It is said by David Amram, Professor of Law in the University of Pennsylvania, in his recent work (1920), "The Pennsylvania Practice Act of 1915," page 57:

"If the Court sustains the demurrer in whole or in part, judgment may be given for defendant, or plaintiff nfay be given leave to amend or file a new pleading under Sec. 21."

In view of the foregoing condition, the judgment in this case entered by the Court below is affirmed, and the record is directed to be remitted.

Beener v Morgan.

Injunction Lease-Alleged Fictitious Sale-Possession

Jurisdiction.

Equity restrained by preliminary injunction a proceeding before a justice of the peace under the Act of 1863 for possessioin of land where plaintiff held as tenant, the allegation being that defendant was attempting to terminate a lease by a fictitious sale not made in good faith.

In Equity. Sur Application to Continue Preliminary Injunction. No. 64 July Term, 1920. C. P. Allegheny County.

Beatty, Magee & Martin, for plaintiff.

John D. Brown and John E. Winner, for defendant.

SHAFER, P. J., April 28, 1920.-The bill is to stay proceedings before a Justice of the Peace, under the Act of 1863, for possession of land of which the plaintiff is a tenant. The allegation is that the lease under which the plaintiff holds, is not one which is terminated by its own terms, but that the termination of it, which is claimed by the defendant, is by reason of a clause in the lease providing that if the property is sold, the lease shall terminate, and it is further alleged that the sale claimed to have been made by the defendant is not a sale made in good faith, and that the agreement for the sale does not show a sale in fact, but only the making of a lease under the cover of a sale, and that the determination of these matters is not to be properly submitted to a Magistrate in such a case.

A preliminary injuncion was granted on April 8. Without assigning reasons which might prejudice the proper determination of the case upon final hearing, we are of opinion that under all the circumstances of the case, the injunction ought to be continued until final hearing. It is therefore ordered that the injunction granted on April 8, 1920, be continued until final hearing.

Drum, etc. v James.

Assumpsit-Lease of Coal Mine-Credits-Terms

-Questions for Jury.

In assumpsit to recover the balance due on a lease of a coal mine, it was a question of fact for the jury to determine what credits were to be allowed where plaintiff and defendant differed on the several amounts under the terms of the contract and new trial refused.

Motions for New Trial and for Judgment Non Obstante Veredicto. No. 2126 April Term, 1919. C. P. Allegheny County.

Geo. M. Hamilton and A. T. Morgan, for plaintiff.

James A. Wakefield and Max J. Spann, for defendant.

Before SHAFER, P., J., and KLINE and MACFARLANE, JJ.

MACFARLANE, J., March 20, 1920.-This action was for the recovery of $604, a balance claimed to be due on a written contract of sale to defendant of plaintiff's lease of a coal mine, part of which is as follows:

"The second party shall also assume and agree to pay the balance unpaid on the loan from Mae P. Paxton * * * and the balance remaining unpaid on the amount advanced on loan by the Pioneer Coal & Coke Company as of the close of business on October 29, 1918, estimated to be $2,100.00. It is understood that full credit shall be given on both of said loans at the rate of twenty-five (25c) cents per ton on all coal shipped prior to said date in accordance with the respective agreements."

The burden was on the plaintiff to show that all credits had been given by the Pioneer Coal Company. James had paid $1,500. (found by the jury not to be in full), and the $2,104. on the Pioneer Coal Company's ledger had been paid by Mrs. Drum's note, afterwards paid by her, and the only issue was whether all credits had been given. The balance shown was made up of a loan of $1,404. on September 29th and another of $700. on October 29, 1918, but there had been earlier advances under agreement between the Pioneer Company and Mrs. Drum, and the applications were made to all of her indebtedness, leaving $2,104. on the account.

The contention of the defendant was that all of the credits were applicable to these two loans and that the indebtedness as of October 29th was thereby paid.

The agreement between Mrs. Drum and James provides that the credits on these loans were to be in accordance with the respective agreements, and the testimony was not only that there were earlier advances, but that the agreement between the Pioneer Company and Mrs. Drum applied to all advances made for construction and that everything applicable had been applied.

The question was left to the jury whether the $604. was the balance due under the terms of the agreement, and the verdict was for the plaintiff.

The affidavit of defense was that the defendant, upon investigation, found that the estimated amount of $2,100. was far less and that Mrs. Drum had borrowed from the Pioneer Company, at the close of business October 29, 1918, about $300. and her husband had borrowed personally on his own credit about $2,104., and that the defendant had not assumed any liability for the personal indebtedness of the husband. Further, that defendant had paid $1,500. in full settlement.

The matter of the applications on Mrs. Drum's general indebtedness was