Kopka v. Bell Telephone Co. of Pa.

91 A.2d 232, 371 Pa. 444, 1952 Pa. LEXIS 436

• Court: Supreme Court of Pennsylvania
• Decided: June 24, 1952
• Docket: Appeal, 178
• Status: Published

Opinions

Opinion by

Mr. Justice Horace Stern,

This litigation involves the question of the right of a possessor of land to recover damages for personal injuries sustained by him in consequence of a trespasser’s invasion of his property.

At the request of residents of a township in Indiana County for telephone service the Bell Telephone Company of Pennsylvania, defendant in this suit, had its engineers stake out a line along a road bordering the farm of the plaintiff, Walter V. Kopka.¹ It then proceeded to obtain rights-of-way from property owners along the road upon which the line was to be constructed, but no such right was obtained from the plaintiff.

Under an arrangement between the Company and one Jud Sed wick, additional defendant, the latter proceeded to erect the necessary poles to carry the wires and for that purpose drilled holes, one of which was dug inside the road on plaintiff’s property; in this hole there was to be placed an anchor rod supporting a guy wire for bracing one of the poles. The Company had indicated to Sedwick where the holes were to be dug and the poles and anchor rods erected. This particular hole, 6% feet deep and 17 inches wide, was dug on Decexnher 19, 1947. Two days later, on the 21st, plaintiff was informed by a neighbor about it and went out to investigate, it having been dug without his permission or knowledge. It was in the latter half of the afternoon of a cloudy day and starting to get dark. While walking around to find the hole plaintiff’s left leg slipped into it with the result that he allegedly sustained certain injuries. He testified, although there was strong evidence to the contrary, that there was no mound or ring of dirt thrown up around the hole and that the ground seemed level at that point. The hay field through which he passed he described as being “rough and rolling, grass growed up, kind of spongy and spots of snow around in the fields.” Around where the hole was “it was all weeds and briars and whatever it was.” Other testimony on behalf of the plaintiff was to the effect that that corner of the field “was left in weeds, briar and morning-glory vines.”

Suit was instituted against the Telephone Company in the Court of Common Pleas of Allegheny County. The complaint alleged that defendant had, without plaintiff’s permission, trespassed upon his farm and dug a hole there, and that property damage as well as personal injuries to plaintiff resulted from the negligence of defendant in thus trespassing and causing others to trespass on his farm, digging the hole there and leaving it unprotected and without barriers, thereby creating a dangerous trap. Defendant filed an answer denying the acts complained of were done by its agents or employes, but that, on the contrary, the installation of the poles and anchor rods was made by Jud Sedwick, an independent contractor. Defendant brought Sedwick on the record as additional defendant, alleging that any damage done to plaintiff’s property or injuries suffered by him were the result of additional defendant’s negligence and not that of defendant. Defendant also filed a preliminary objection to the jurisdiction on the ground that an action for trespass to land in Indiana County could not be brought in Allegheny County. The court, without objection from plaintiff, thereupon struck from the complaint “the .cause of action for damages to the land.” It will be noted that this did not deprive plaintiff of the right to pursue his action for trespass on the land and for any damages recoverable in such an action other than those to the land itself, — in this case an entirely negligible item. Moreover we have held in Bookwalter v. Stewart, 369 Pa. 108, 85 A. 2d 100, that an action of trespass on the land may be brought in any county where the defendant can be served; in other words, that it is a transitory action.

The trial resulted in a verdict in favor of the plaintiff and against defendant in the sum of $11,000, and a verdict in favor of the additional defendant. The court overruled defendant’s motions for judgment n.o.v. and for a new trial, and ordered that judgment be entered on the verdict, from which judgment defendant now appeals.

It should be immediately obvious that, as far as plaintiff’s cause of action was based upon alleged negligence in the failure to cover the hole and erect barriers, the verdict against defendant cannot be sustained. If, as plaintiff claims, Sedwick acted as defendant’s agent, there would be a hopeless inconsistency between the verdict in his favor and the verdict against his employer, since, in that event, , the latter could be liable only on the principle of respondeat superior; (cf. Ferne, Admrx., v. Chadderton, 363 Pa. 191, 195, 196, 69 A. 2d 104, 107). On. the other hand, if Sedwick was an.-independent contractor, it is Of Course axiomatic that his negligence, or that of his' employes, in failing properly to perform the work entrusted to him, could not impose liability upon defendant. Only insofar, therefore, as the action, is one fox?, the' unauthorized invasion of plaintiff’s land — that is, insofar as it is the common law action of quare clausum fregil — can plaintiff’s recovery therein be justified. Defendant maintains that plaintiff, Laving chosen to proceed on the theory tliat defendant was negligent² cannot uphold the verdict in Ms favor on the ground that it was nevertheless justified on a different theory of liability; in support of that argument defendant cites the case of Kramer, Admr., v. Pittsburgh Coal Company, 341 Pa. 379, 19 A. 2d 362. There, however, the verdict was for defendant, and plaintiff then claimed that the case should Lave been submitted to the jury on a theory different from, or in addition to, that on wMch it was presented to them. Here, however, the verdict was for plaintiff, and, if the complaint stated a cause of action and the evidence supported the allegations, plaintiff was entitled to recover, whatever the legal theory on wMch the liability might be based: Federoff v. Harrison Construction Co., 362 Pa. 181, 66 A. 2d 817.

Before considering the question of the liability of a trespasser for personal injuries suffered by the possessor of land as an indirect result of the trespass, there are two relevant legal principles to be borne in mind. The first is that the fact that a trespass results from an innocent mistake and, in that sense, is not deliberate or wilful, does not relieve the trespasser of liability therefor or for any of the results thereof: Watson v. Rynd, 76 Pa. 59; Chase v. Clearfield Lumber Company, 209 Pa. 422, 58 A. 813. Thus, in Eestatement, Torts, §163, comment b, it is said: “If the actor intends to be upon the particular piece of land in question, it' is not necessary that he intend to invade the actor’s interest in the exclusive possession of his land. The intention which is required to make the actor liable ... is an intention to enter upon the particular piece of land in question irrespective of whether the actor knows or should know that he is not entitled to enter thereon. It is, therefore, immaterial whether or not he honestly and reasonably believes that the land is his own, or that he has the consent of the possessor or of a third person having power to give consent on his behalf, or that he has a mistaken belief that he has some other privilege to enter.” So, in §164 it is said: “One who intentionally enters land in the possession of another without a privilege to do so is liable ... to the possessor of the land as a trespasser thereon, although he acts under a mistaken belief of law or fact, however reasonable, . . . that he . . . (b) has the consent of the possessor or of a third person who has the power to give consent on the possessor’s behalf,...” (See also comments a and d).

The second important principle to be noted is that one who authorizes or directs another to commit an act which constitutes a trespass to another’s land is himself liable as a trespasser to the same extent as if the trespass were committed directly by himself, and this is true even though the authority or direction be given to one who is án independent contractor: Allen v. Willard, 57 Pa. 374, 381; McCloskey v. Powell, 123 Pa. 62, 73, 74, 16 A. 420, 422, 423; 138 Pa. 383, 397, 21 A. 148, 149; Silveus v. Grossman, 307 Pa. 272, 278, 161 A. 362, 364 “If, by any act of Ills, tlie actor intentionally canses a third person to enter land, he is as fully liable as though he himself enters. Thus, if the actor has commanded or requested a third person to enter land in the possession of another, the actor is responsible for the third person’s entry, if it he a trespass. This is an application of the general principle that one who intentionally canses another to do an act is under the same liability as though he himself does the act in question”: Restatement, Torts, §158, comment i.

The liability of defendant Company for the trespass involved in the digging of the hole on plaintiff’s land without his knowledge or consent being thus established, does such liability extend to the personal injuries sustained by Mm as the result of his falling into the hole? The authorities are clear to the effect that where the complaint is for trespass on land the trespasser becomes liable not only for personal injuries resulting directly and proximately from the trespass but also for those which are indirect and consequential.³ ****8 In Restatement, Torts, §380, it is stated that “A trespasser on land is subject to liability for bodily harm caused to the possessor thereof . . . by any . . , condition created by the trespasser while upon the land irrespective of whether the trespasser’s conduct is stick as mould subject him to liability were he not a trespasser.” And in comment e to this section, it is said: “It is, therefore, not necessary to the liability of the trespasser that his conduct should be intentionally wrongful or recklessly or negligently disregardful of the interests of the possessor .... Thus, one who trespasses upon the land of another incurs the risk of becoming liable for any bodily harm which is .caused to the possessor of the land ... by any conduct of the trespasser during the continuance of his trespass no matter how otherwise innocent such conduct may be.”⁴ And in comment f to §163, it is said: “So too, he [a trespasser] is liable for any harm to the possessor ... if such harm is caused by the actor’s presence on the land, irrespective of whether it was caused by conduct which, were the actor not a trespasser, would have subjected him to liability.”

The authorities uniformly support the principle thus stated; see, for example: Troth v. Wills, 8 Pa. Superior Ct. 1; Newsom v. Meyer, 102 Conn. 93, 128 A. 699; Brackett v. Bellows Falls Hydro-Electric Corporation, 87 N.H. 173, 175 A. 822; Ham v. Maine-New Hampshire Interstate Bridge Authority, 92 N.H. 268, 275, 30 A. 2d 1, 6; Van Alstyne v. Rochester Telephone Corporation, 296 N.Y.S. 726; Keesecker v. G. M. McKelvey Co., 141 Ohio St. 162, 170-172, 47 N.E. 2d 211, 215, 216; Wyant v. Crouse, 127 Mich. 158, 86 N.W. 527; Cribbs v. Stiver, 181 Mich. 82, 147 N.W. 587; Bouillon v. Laclede Gas Light Co., 148 Mo. App. 462, 129 S.W. 401.

Of course, if the owner or possessor of the land, wilfully, voluntarily, or by negligence, himself brings about the injury to his person, such an injury cannot be said to be consequent upon the trespass to the land, and in that event the trespasser would not be liable therefor: Clifford v. Metropolitan Life Insurance Company, 197 Ky. 828, 248 S.W. 180. The question arises, therefore, in the present case whether plaintiff’s accident was essentially due to an inexcusable failure on his own part to see the hole for which he was in fact searching. That question, however, was for the jury and cannot be determined as a matter of law. The hole was comparatively small in diameter and, according to his evidence, was in rough ground where there were grass, briars, weeds, vines and spots of snow, interfering, perhaps, with ordinary clearness of vision, especially on a late, cloudy afternoon in the latter part of December.

The verdict rendered in favor of plaintiff was undoubtedly excessive. It appears that he suffered a war injury to his side and left leg which resulted in a 50 per cent disability and for which he is receiving compensation from the Government. In the present accident he claims to have sustained injuries to his right foot and to his back. The foot injury was occasioned by a briar penetrating his shoe and causing a puncture in the sole of the foot; after treatment this injury cleared up entirely in a couple of months leaving but a small scar. The only professional testimony as to the back injury was that of a doctor who examined him five days before the trial, more than two years after the accident, for the purpose, not of treatment, but of testifying. This doctor stated that in his opinion plaintiff had a chronic inflammation of muscles and tissue in the lower part of the back...and an early osteoarthritis. The testimony as to the causal relation between the accident and the arthritic condition was extremely tenuous. Plaintiff received some diathermic treatment for Ms back, but his entire medical expenses amounted to $80. He was not hospitalized. His claims for losses occasioned by alleged forced relinquishment of certain activities were open to serious question; ten months before the accident he had signed a statement to the Government that he was unable then to work because of the injury to his leg. On the whole, a verdict in the amount of $7,000 would seem generous compensation for the injuries he sustained, and the verdict should accordingly be reduced to that amount.

As far as the verdict in favor of the additional defendant is concerned, it is clear, from what has previously been stated, that Sedwick, however innocent his act of trespass, incurred thereby the same liability to plaintiff as did the original defendant. However, there has been no appeal by plaintiff from the verdict in Sedwick’s favor, nor has defendant ever made any claim on its own behalf against the additional defendant.⁵ Therefore the propriety of the verdict in the latter’s favor is not here in question.

As modified the judgment is affirmed.

1 Kopka’s wife, Stella M; Kopka, was originally named as a co-plaintiff in the action, but during the trial the court made an order removing her as a party.

2 In plaintiff’s complaint defendant’s trespass is treated as an act of negligence, and, curiously enough, counsel for plaintiff persisted throughout the trial and on the present argument to so characterize it. The invasion of plaintiff’s land was, in and of itself, an affirmative, intentional act, not a negligent one, even though it may have resulted from a mistake on the part of the defendant as to the ownership of plaintiff’s property. Even had defendant made the most careful and exhaustive inquiry into that matter before committing the trespass it would nevertheless have made itself liable as a trespasser. Incidentally,' it may be noted that there is no evidence in the record of any “negligence” on the part of defendant, since it was not shown what steps were taken, or what additional steps' could have been ' takexi, to ascertain the fact of ownership; indeed plaintiff’s counsel objected' to the introduction of testimony on that subject. Had -it been necessary' to prove negligence on defendant’s part plaintiff’s proofs, to that end. would have been wholly inadequate. ..................'

3 The learned trial judge erroneously affirmed a point for charge submitted by defendant that “The failure of the Bell Telephone Company of Pennsylvania to obtain a right-of-way over Kopka’s property was too remote to be the proximate cause of the accident,” and erred also by charging the jury as follow's: “Now, that matter of trespass as to the land, that is, the coming onto the plaintiff’s land and doing something is a matter that is too remote for your consideration. . . . the evidence of trespass to the land is not for your consideration.” That was not only á misstatement of the law in-favor of defendant but practically amounted.to binding instructions in its favor.

4 The Restatement gives the following illustration .of the .principle enunciated in that section:. “A is driving his car along, the highway. in a neighborhood with, which he .is unfamiliar.. He asks B to direct hirn to a certain town. B tells .him. that he can .take, a short cut. through, a . private . road over which the public is ; pot accustomed to travel, which B asserts. to be upon, his own .land but which, in fact, is on the land .of C. . .While driving oar.efully.along the road, he. runs over D, C’s three-year-old child,, .who suddenly dashes out from the bushes which border the.road....A is liable, to I> and to C. .....................

5 Defendant’s complaint against the additional defendant claimed merely that the latter was solely liable to plaintiff.