Briggs v. Philadelphia , 316 Pa. 48 ( 1934 )

I cannot concur in the majority opinion. No ordinance and no statute requires "notice from the municipality to the owner," to make the latter liable in tort. The Act of May 16, 1891, P. L. 75, section 11, provides: "The municipal authorities may require . . . . . . sidewalks . . . . . . to be . . . . . . kept in repair, and after notice to the owner . . . . . . to . . . . . . repair such walks and stone in front of his, her or their property, said municipal authorities may do the necessary work and assess the cost thereof upon the property of said owner or owners in front of or along which said walk . . . . . . so . . . . . . repaired, shall be situate, and file a lien therefor or collect the same by action of assumpsit." The Philadelphia city ordinance of May 3, 1855, provides as follows: "The footways of all public streets and highways . . . . . . shall be . . . . . . kept in repair, at the expense of the owners of ground fronting thereon." There is thus clearly imposed by law a duty on the person designated, to wit, the owner of the fronting ground. Here that means the Germantown Trust Company. Where a public duty is ignored and injury is the consequence, there follows liability in tort. When one owes the public a duty to act, he is not ordinarily relieved of his duty by contracting with another to perform it. I think the Superior Court was right in its statement that "the public duty of the lessor is not divested by making a lease, it is only qualified by requiring notice of the defect on account of his nonoccupancy: Lindstrom v. Penna. Co., 212 Pa. 391, 61 A. 940; Ashley v. Lehigh Wilkes-Barre Coal Co., 232 Pa. 425, 81 A. 442."

The majority opinion says: "Whether or not we agree with these general observations, which seem to us to be the foundations for that court's [the Superior's] conclusion, we think they are not pertinent to the inquiry which this case develops. We are not confronted with notice by the city to the property owner . . . . . . but with alleged notice by a tenant who was himself bound to make the repair. A tenant cannot shift responsibility to his landlord in this way nor can the city acquire any advantage against the owner because of the action of his tenant."

I think the answer to this is that when the city imposed a duty "to keep in repair" all "footways" at the expense of the owners of contiguous ground it did not make the performance of this duty contingent upon a notice from the municipality to repair a specific sidewalk or footway. A general command from one legally authorized to give it must be obeyed by all persons under the compulsion of obedience to that command. The notice to repair provided for in the Act of 1891 is a notice the municipality must give before it can do the work itself (upon the owner's failure to comply with the notice given) and assess the costagainst him and collect the same by action of assumpsit. That notice is prerequisite to the exercise of a procedural right and not a prerequisite to the performance of a public duty by an abutting property owner. "In the case of borough sidewalks, the owners of property are required by law to keep their footways in repair. . . . . . This is a duty imposed directly upon the property owner, and is in the nature of a police regulation": Wilkinsburg Boro. v. Home for Aged Women, 131 Pa. 109,18 A. 937. "An ordinance requiring lot owners to lay sidewalks is a police regulation. A duty is imposed, the neglect of which creates a liability — if it be so ordained — to the municipality for the cost it has been put to in doing that which he [the lot owner] ought to have done": Pittsburgh v. Daly, 5 Pa. Super. 528.

If we take the law to be that even a liability imposed by law on the owner to keep his sidewalks in repair is contingent upon notice to him that they are out of repair, that contingency is present here. The "notice" referred to in Ashley v. Lehigh Wilkes-Barre Coal Co. (supra), and other cases, was not restricted by making it a notice from any certain source. Notice means knowledge or information; whatever puts one upon inquiry amounts to notice. See Words Phrases, 1st edition, volume 5, page 4840. For example, if one was charged with receiving stolen goods "knowing they were stolen," it would be no defense that while he had actual knowledge that the goods were stolen he did not have that knowledge from the thief. Proof that the Germantown Trust Company had actual notice that the sidewalk was in disrepair should have been received. Its duty to the public to keep that sidewalk in repair was not a somnolent one which could be galvanized into legal life only by a notice from the municipality.

I think it pertinent to call attention to the fact that some of our later cases, notably Phila. v. Merchant Evans Co.,296 Pa. 126, 145 A. 706, holding that the liability of an owner for defects in the pavement or sidewalk ceases when he is out of possession, seem to be based on the case of Schott v. Harvey,105 Pa. 222. In that case it was clear from the context that the word "owner" in the statute there being interpreted clearly meant the person in possession as distinguished from the owner of the fee. Justice PAXSON said that the "reasonable construction" of the act imposing "upon the owners, superintendents or managers of factories" the duty of providing fire-escapes, was that by owner was meant "the occupant in possession, who places the operatives in a position of danger and enjoys the benefit of their success."

I understand the majority opinion as holding that the Germantown Trust Company is relieved from the duty expressly imposed upon it by ordinance, not because it was out ofpossession, but because it did not receive from the city notice of the defect in the sidewalk. I am unable to find anything in any ordinance of the City of Philadelphia or in any previous decision of this court which thus defines the character or limits the source of the "notice" which an owner out of possession must receive in order to make his legally imposed liability operative.

In Lindstrom v. Penna. Co., 212 Pa. 391, 394, 61 A. 940, this court, in discussing Mintzer v. Greenough, 192 Pa. 137,43 A. 465, said that a point reading as follows should have been affirmed "as a correct announcement of the general principle": "An owner out of possession, whose house is in the actual occupation of a tenant, is not required to keep a constant supervision of such house and of the highway in front of it; and if a defect occurs in the sidewalk during such occupation by a tenant, by reason of which a person walking on the street is injured, the landlord is not liable to the person injured, unless knowledge or notice of such defect is traced to him." The converse of this is, of course, that under the circumstances stated the landlord is liable if knowledge or notice of such defect is traced to him. Here knowledge or notice was "traced to" the landlord.

I would therefore affirm the judgment of the Superior Court.