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FERENCE v. BOOTH AND FLINN COMPANY (04/23/52)

April 23, 1952

FERENCE, APPELLANT,
v.
BOOTH AND FLINN COMPANY



Appeal, No. 33, March T., 1952, from order of Court of Common Pleas of Allegheny County, July T., 1946, No. 2046, in case of Stanley Ference, Jane A. Ference and the Potter Title and Trust Company, etc., v. Booth and Flinn Company. Order affirmed; reargument refused May 27, 1952.

COUNSEL

James J. Lawler, with him James A. Geltz, Leo Daniels, and Prichard, Lawler, Malone & Geltz, for appellants.

Arthur M. Grossman, with him J. Wray Connolly, William S. Moorehead, Jr., and Moorhead & Knox, for appellee.

Before Drew, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Drew

[ 370 Pa. Page 401]

OPINION BY MR. CHIEF JUSTICE DREW

Booth and Flinn Company, a Pennsylvania Corporation, defendants, while constructing a road for the Commonwealth allegedly caused a subsidence of a higher road rendering it impassible and making it necessary for business owned by plaintiffs to detour, with a resultant loss of patronage and increased expenses. To recover damages for the loss thus suffered plaintiffs brought this suit. At the conclusion of plaintiffs' evidence a non-suit was entered. This appeal is from an order refusing to remove that non-suit.

On November 30, 1944, defendant entered into a contract with the State Highway Department of the Commonwealth of Pennsylvania to extend the Ohio River Boulevard westwardly from Leetsdale to Ambridge in Allegheny County. The specifications provided

[ 370 Pa. Page 402]

    for a fifty-foot wide divided highway to be located in the low ground north of the Pennsylvania Railroad tracks on the right bank of the Ohio River. In order to meet these specifications it was necessary to excavate at the foot of a steep hillside. Beaver Road was located some distance up that same hill and on July 24, 1945, while defendant was excavating at the foot of the hill a slide occurred which caused large fissures and cracks in Beaver Road resulting in its being closed to traffic on that date.

Plaintiffs, a partnership trading as Ohio River Motor Coach Company, operated a bus line between Aliquippa and Pittsburgh under a license issued by the Pennsylvania Public Utility Commission. The route used by plaintiffs under their certificate included the portion of Beaver Road affected by the slide. When Beaver Road was closed on July 24, 1945, plaintiffs were forced to use a detour which added twenty-nine and a half miles to each round trip. To eliminate that extra mileage they later adopted a shuttle system which required the passengers to walk a distance of some four hundred feet through the slide area. Finally, when complaints were received from passengers, they adopted a new detour which reduced the added distance to twenty-four and a half miles per round trip. This last system was used until defendant finished clearing the slide area on November 30, 1945, and Beaver Road was re-opened to traffic.

It is self evident that the additional mileage resulted in added expenses to plaintiffs and it is equally obvious that the inconvenience to passengers would result in a loss of trade to plaintiffs. The learned court below held that these losses were damnum absque injuria and accordingly entered a non-suit. We are in accord with that conclusion.

The evidence establishes that defendant was an independent contractor in the construction of the Ohio

[ 370 Pa. Page 403]

River Boulevard extension. The lower court so concluded and that conclusion is not questioned here. Nor could it be in view of the fact that defendant was to furnish and pay for all labor, materials and equipment and its compensation in turn was based on the completed job. The mere fact that the Commonwealth maintained an engineer on the job to see that the ...


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