Burford v. Richards ( 1914 )

Opinion by

Trexler, J.,

We will consider the case as presented under the several divisions of the appellants’ paper-book, the points raised covering all the assignments.

1. The court although disallowing the plaintiff’s claim for damages for malicious prosecution and false imprisonment, allowed recovery on the theory that the defendants had without right interfered with the plaintiff’s business and that their agent and employees harmed the plaintiff. We find no error in this. Claims for malicious prosecution and false imprisonment are different in many aspects, especially as to the items of damages, from the ordinary action of trespass for interfering unlawfully with a man’s business, and the exclusion by the court of the former did not preclude the plaintiff from recovery for the latter.

2. We need not discuss the second position urged by the defendants that the plaintiff had no right to enter upon the lands of the defendants for the purpose for which he entered. ' His right on the premises is set out in the opinion of Rice, P. J., in Com. v. Shapiro, 41 Pa. Super. Ct. 96. The court referred to that case in his charge and defined plaintiff’s rights in the matter. More was not required.

3. The fourth objection urged, being the seventh assignment by the defendants, is more serious and we think requires a reversal. The court below allowed the plaintiff in showing the damages to his business to prove the amount of business he did at another plant of similar character situated a little farther up on the same road on which the plant of the defendants is located, the latter plant being somewhat smaller. Basing the business which he believed he would have done at the defendants’ plant by comparison with the other plant, he arrived at the amount of his damages', which were given as a lump sum. The learned trial judge expressed doubts as to the admission of this proof. We think it was clearly incompetent.

The general rule is that the profits are not excluded simply because they are profits, but that they may be recovered. The evidence must establish the amount with a reasonable degree of certainty. Although in torts greater latitude is allowed to the jury in the assessment of damages than is allowed in actions of contract, they must be damages which ordinarily and in the natural course of things have resulted from the commission of the wrongful act: Hillsdale Coal & Coke Co. v. Penna. R. R. Co., 229 Pa. 61.

In the defendants’ coke property the plaintiff has a limited right of entry clearly set forth in Com. v. Shapiro, 41 Pa. Super. Ct. 96. The use of the ways on the coke property for the purpose of delivering to the tenants goods bought by the tenants or ordered to be so delivered, was lawful, and furthermore when he was thus lawfully upon the premises the mere soliciting orders from the same tenants would not constitute trespass, but the delivering of the goods lawfully to a tenant would not justify the use of all the ways or the remaining part of the same way for the purpose of soliciting orders from other tenants. How could there be any comparison between the amount of business which might have been obtained through an entry upon the defendants’ lands under such limited right and the business which resulted from the free and unrestricted entry upon another coke plant? There can certainly be no legitimate basis of comparison. There are other elements entering into the comparison which counsel have pointed out and to which we might refer, but the above statement alone, we think, shows that any result arrived at by the jury upon such testimony would be mere guesswork, and would be without any substantial foundation.

4. The last objection made by the defendants is that they were improperly joined and that there having been six defendants a verdict and judgment rendered against only three of them, cannot be sustained: citing Wiest v. Elec. Traction Co., 200 Pa. 148, and the cases following that decision. It appears, however, that an exception to the general rule exists where conspiracy is charged and that on failure to prove the conspiracy, if there be. proof of an actionable wrong by any two or more of the defendants there may be recovery against such as were guilty of the tort.

In Laverty v. Vanarsdale, 65 Pa. 507, we find, “This is an action upon the case, in the nature of a conspiracy against the defendants (ten in number), for falsely and maliciously combining and conspiring to prevent the plaintiff' from obtaining employment as a school teacher, and by reason of which combination and conspiracy he was deprived of employment as a school teacher, and prevented from earning support for himself and family as such.” The damages sustained by the plaintiff is the ground of the action not the conspiracy. “Where the action is brought against two or more, as concerned in the wrong done, it is necessary in order to recover against all of them, to prove a combination or joint act of all. For this purpose it may be important to establish the allegation of a conspiracy. But if it turn out on the trial that only one was concerned, the plaintiff may-still recover, the same as if such one had been sued alone. The conspiracy or combination is nothing, so far as sustaining the action goes, the foundation of it being the actual damage done to the party.”

In Collins v. Cronin, 117 Pa. 35, Justice Paxson quoting the above case of Laverty v. Vanarsdale says, “This is perfectly good law.” Fillman v. Ryon, 168 Pa. 484, is to the same effect.

This distinction is recognized in Wiest v. Traction Co., 200 Pa. 155, and as stated in the case of James v. Evans, 149 Fed. Repr. 136, by Bradford, J., referring to Weist v. Traction Co., “The court evidently intended, without overruling or questioning them, to distinguish its decisions in actions for conspiracy from the case of negligence then under consideration, for it said: 'Laverty v. Vanarsdale, 65 Pa. 509,' was an action of conspiracy and that decision is referable to that class of cases: Collins v. Cronin, 117 Pa. 35; Rundell v. Kalbfus, 125 Pa. 123, and Fillman v. Ryon, 168 Pa. 484, are similar in character.”

The distinction has been maintained through a long line of eases and we, therefore, are constrained to hold that the last point urged by the appellant cannot be maintained. We might further add that the cases of Wiest v. Traction Co., 200 Pa. 148, and Sturzebecker v. Inland Traction Co., 211 Pa. 156 do not prevent a recovery against two or more joint tort feasors although the action fails-as to some.

The assignments of error are all overruled excepting the seventh which is sustained. The judgment is reversed and a venire facias de novo awarded.