Hitchcock v. Bacon , 118 Pa. 272 ( 1888 )

Opinion,

Mr. Justice Green :

This was an action of trespass on the case brought by a tenant against his landlord to recover damages for an alleged forcible eviction from tbe demised premises during the pendency of the term. The defence was that the building was removed by the authorities of the city of Pittsburgh, where it was situated, because it was in a dangerously dilapidated condition, in pursuance of a city ordinance authorizing the removal of buildings for such cause. On the trial it was proved beyond all question that the building was in fact torn down by the city officials; but the plaintiff claimed that this was done by the procurement of the defendants in order to get rid of the plaintiff who refused to leave the premises. The learned court below told the jury that if it were in fact torn down by the city authorities and that were all, and the defendants did not interfere with or connive, at it in- such a way as to make them personally participants' in the act for their own purposes, they could not be held liable, whether they got the benefit of it or not. This was certainly correct, but the court also charged that if the tearing down was done by the connivance of the defendants, “ or if not concocted, even acquiesced in by them so as to bring about that which would not otherwise have happened, they are as much responsible as if they had stood on the curbstone and given general orders to ‘ tear away boys, and throw him out.’ ” We are not able to agree to this as a correct statement of the law applicable to the case.

The substance of this portion of the charge, as we understand it, is that mere acquiescence by the owners without any effort to resist the action of the city authorities, would make them liable in damages to the plaintiff as for a forcible eviction actually made by themselves. That proposition involves consequences to which we cannot assent. Granting that the eviction was desirable to the defendants; that it accomplished their wishes and gave them an important advantage over the plaintiff in the matter of getting rid of him as a tenant, still it was not their act. On the contrary, it was the undoubted act of the city officials. If wrongfully done they were responsible, and if rightfully done, of course there could be no recovery and the court so charged the jury. ' The city officials assumed all the responsibility for the destruction of the building, and the proof upon this subject was so conclusive that it cannot be questioned, and in truth was not questioned by the court in the charge. The person who tore- down the building was. one Devlin, who testified that he took it down under a contract to do so, made with Bigelow the city engineer and Linderman the street commissioner. Bigelow being examined testified: “ Q. Did you make any contract with Mr. Devlin with relation to that house? A. Yes sir; I did through Mr. Linderman. I sent Mr. Devlin to Mr. Linderman; had Mr. Linderman to make the contract. Q. The contract in relation to what ? A. Taking down the building occupied by Mr. Bacon on Smithfield street.” Repeated notices were given by the city authorities that the building was in a dangerous condition, and in the first of these dated May 15, 1884, the defendants were directed, by the building inspector either to remove or repair the building forthwith. In January, 1885, another notice was given. On March 25,1885, another notice was given of which the following is a copy:—

Office of Inspector of Buildings,

Pittsburgh, March 25,1885.

To Mr. Thos. Liggett, Agt.

You are hereby notified that at the request of two citizens of the city I have examined your building, situate on Smithfield street, being No. 446 of said street, occupied by Frank Bacon, and find that it is in a dangerous condition, and order and direct that you forthwith remove the same, upon failure of which I will proceed according to law.

J. C. Brown, Building Inspector.

On April 3, 1885, another notice was served upon the defendants, of which the following is a copy:—

Pittsburgh, April 3, 1885.

Thos. Liggett, Agent.

Dear Sir: — You are hereby notified to remove the building from No. 446 Smithfield street (now occupied by Frank Bacon), within five (5) days, or I will be compelled to do the same at your expense. Respectfully,

E. M. Bigelow, City Engineer.

Notwithstanding these notices the defendants did not remove the building, and thereupon Bigelow, who was both city engineer and highway commissioner, directed Linderman to contract with Devlin to take it down.

In the face of this testimony it is useless to contend that the removal of the building was not the deliberate act of the city officials. The dangerous condition of the building was fully proved, and, indeed, is not questioned. The removal was effected after most ample notice to the plaintiff, who was given all the time he needed to remove his stock, and did remove it to another building, which he had previously rented for the purpose. It is of no consequence, if it be true, that there was not an inspection of the building, and an arbitration upon the question whether the building was dangerous. Those are rights of the owners of which they may avail themselves if they desire. But in view of the very positive testimony as to the condition of the building, an arbitration would have been of no service in preventing an order for its removal; and in any event the- right to contest the granting of the order was personal to the owners and was no concern of the plaintiff. The order was made by the proper official, and was literally carried out under his direction; and if the removal was an illegal act, the plaintiff has his remedy against those who were guilty of it. We are not referred to any testimony showing that either of the Hitchcocks had anything whatever to do with the removal of the buildihg by the city authorities, nor have we been able to discover any such testimony in the case. Nor can we discover any evidence connecting Liggett, their agent, with the removal in any such manner as to render him or them liable therefor. The first and second points of the defendants should have been affirmed. The first six assignments of error are sustained. The consideration of the last two is not necessary.

Judgment reversed.