Whitney v. Backus , 30 W.N.C. 169 ( 1892 )

Opinion by

Mb.. Justice McCollum,

This was an action of trespass quare clausum fregit brought by George M. Whitney and Lucinda M. Whitney against Alfred Short, William C. Culbertson, Roscoe A. Davidson, Andrew M. Backus, and Edwin J. Dodge, doing business as the Penn Lumber Co., Limited, to recover the damages allowed by § 3 of the act of March 29, 1824, Pur. Dig. 1635, for cutting timber trees without the consent of the owner. It resulted on the trial in the court below in a verdict and judgment of $100 against Andrew M. Backus, who is the appellant here.

The instruction complained of in the first specification of error is in accord with well settled principles applicable to cases of this kind. McCloskey v. Powell, 123 Pa. 62, and 138 Pa. 383, is the latest ease on the subject which we now recall, and it sufficiently vindicates the affirmance of the appellee’s sixth point. We fail to discover error in the refusal of the appellant’s third point. There was no evidence that A. J. Culbertson from whom Lorett Leavitt received a deed in 1839, had title to the land in dispute, or possession of it, at any time. The possession of Leavitt, as described by his son, and the conveyances mentioned in the point, were not sufficient to constitute a good title in the Penn Lumber Co., Limited. His possession was not clearly defined, and there was no satisfactory evidence that it was maintained under these conveyances. The remaining specifications raise the question whether it was the duty of the court, on the whole evidence, to instruct the jury to find for the defendants. The appellant contends that it was, and the grounds of his contention are : 1, that the Penn Lumber Co., Limited, was in possession of the land under color of title; and 2, that there was no evidence to justify an inference that the defendants participated in the alleged trespass, or by word or act, before or after its commission, became personally liable for it. In reference to the first ground the learned judge instructed the jury that if the Penn Lumber Co. was in possession under color of title, the action could not be maintained, and in explanation said: “ Possession under color of title means possession under a bona fide claim of title.” This instruction was not excepted to, and is not assigned as error. But the learned judge refused to say that the facts recited in the appellant’s sixth point were clearly proven. He could not well do otherwise, because the credibility of the testimony relied on by the appellant to establish these facts, and the good faith of the claim under which the alleged possession was taken and maintained, were for the jury. The claim that the evidence was not sufficient to show that the defendants participated in the trespass, or were personally liable for it, was sustained as to all of them except the appellant. It is evident from the instructions to the jury that the learned judge thought something more than ownership of shares in a joint stock association was necessary to subject a member of it to personal liability" for its torts, and in this view we concur.

A joint stock association, organized and managed in strict compliance with the provisions of the act of June 2, 1874, P. L. 271, and the supplements thereto, has many of the qualities of a corporation. It has an association name, in which it must sue and be sued, and take, hold, and convey the real estate purchased and sold by it. Its operations are carried on through officers or agents, and it is responsible for their torts committed within the scope of their employment and in the prosecution of its business. The liability of its members for its acts and engagements is limited to their contributions or subscriptions to its capital, and their interests in it are personal estate. Unlike an ordinary partnership, and like a corporation, it is an artificial person, and survives the death of a member or a sale of his interest. Such an association is answerable for the tortious acts which it expressly or impliedly authorizes, but its members are not personally responsible for them as a consequence of their contributions to its capital. It follows that, when a member of the association is sued for its trespass, it should appear that he was a participant in the tortious act complained of. It is not enough in such case to show that he was then an officer or agent of the association. If inferences are relied on to connect him with the trespass, they must be such as naturally and reasonably arise from the facts proven or admitted. An inference from an inference is not admissible. Applying these principles to the case at bar, we examine the evidence from which the jury was allowed to infer that the appellant was a trespasser. It is brief, and we quote the whole of it.

Warren Cole, a witness for the appellees, testified as follows : “ Q. State whether or not, at one time, you were superintendent, or what position you held with the Penn Lumber Co. ? A. I was foreman of the works. Q. From what time on ? A. From the first of March, 1883 ; I was there five years. Q. What do you know about who cut the timber, and at whose order it was cut, east of the creek? A. I cut it myself ; I ordered it cut. Q. For whom ? A. The Penn Lumber Co.”

When he was called by the appellant, and in answer to the question, “you were superintendent of this property for a time before Mr. Pierce?” he said, “Not exactly superintendent; I was foreman there. When I first went there Mr. Backus was superintendent.” “ Q. When were you superintendent there ? A. I went there March 15, 1883.”

The appellant testified, on cross-examination by the appellees, as follows: “ Q. You were a member of the Penn Lumber Co., one of the firm? A. Yes, sir. Q. Until Mr. Pierce went there ydu were up there most of the time ? A. Yes, sir. Q. You had charge until he went there in 1883, in June ? A. Not all the time. Generally I had, when I could be there.” This is all the testimony pertinent to our question. It clearly shows that the timber was cut for the Penn Lumber Co. on the order of its foreman. It fails to show the nature and extent of the appellant’s supervision of the business of the company, that by word or act he participated in or ratified the trespass, that he was on the premises at the time of it, or knew of its commission. The verdict therefore rests not on an inference, but on a guess, which is certainly not a proper factor in fixing the responsibility for a trespass so highly penal in its consequences. It was error to allow the jury to make the guess.

It is suggested that an admission of the trespass is contained in the pleadings. We do not think so. The pleas of not guilty and liberum tenementum put the plaintiffs on proof of their possession, and of the trespass described in their declaration.

The 1st, 2d and 4th specifications of error are overruled, and the 3d and 5th are sustained.

Judgment reversed.