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June 24, 1952


Appeal, No. 178, March T., 1951, from judgment of Court of Common Pleas of Allegheny County, Oct. T., 1948, No. 1846, in case of Walter V Kopka et ux. v. The Bell Telephone Company of Pennsylvania and Jud Sedwick. Judgment, as modified, affirmed; reargument refused September 30, 1952.


Ella Graubert, with her Patterson, Crawford, Arensberg & Dunn, for defendant, telephone company, appellant.

E. V. Buckley, with him Mercer & Buckley, for plaintiff, appellee.

Ernest C. Reif, with him Dickie, McCamey, Chilcote, Reif & Robinson, for additional defendant.

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

Author: Stern

[ 371 Pa. Page 446]


This litigation involves the question of the right of a possessor of land to recover damages for personal injuries sustained by him in consequence of a trespasser's invasion of his property.

At the request of residents of a township in Indiana County for telephone service the Bell Telephone Company of Pennsylvania, defendant in this suit, had its engineers stake out a line along a road bordering the farm of the plaintiff, Walter V. Kopka.*fn1 It then proceeded to obtain rights-of-way from property owners along the road upon which the line was to be constructed, but no such right was obtained from the plaintiff.

Under an arrangement between the Company and one Jud Sedwick, additional defendant, the latter proceeded to erect the necessary poles to carry the wires and for that purpose drilled holes, one of which was dug inside the road on plaintiff's property; in this hole there was to be placed an anchor rod supporting a guy wire for bracing one of the poles. The Company had indicated to Sedwick where the holes were to be dug and the poles and anchor rods erected. This particular hole, 6 1/2 feet deep and 17 inches wide, was dug on December

[ 371 Pa. Page 44719]

, 1947.Two days later, on the 21st, plaintiff was informed by a neighbor about it and went out to investigate, it having been dug without his permission or knowledge. It was in the latter half of the afternoon of a cloudy day and starting to get dark. While walking around to find the hole plaintiff's left leg slipped into it with the result that he allegedly sustained certain injuries. He testified, although there was strong evidence to the contrary, that there was no mound or ring of dirt thrown up around the hole and that the ground seemed level at that point. The hay field through which he passed he described as being "rough and rolling, grass growed up, kind of spongy and spots of snow around in the fields." Around where the hole was "it was all weeds and briars and whatever it was." Other testimony on behalf of the plaintiff was to the effect that that corner of the field "was left in weeds, briar and morning-glory vines."

Suit was instituted against the Telephone Company in the Court of Common Pleas of Allegheny County. The complaint alleged that defendant had, without plaintiff's permission, trespassed upon his farm and dug a hole there, and that property damage as well as personal injuries to plaintiff resulted from the negligence of defendant in thus trespassing and causing others to trespass on his farm, digging the hole there and leaving it unprotected and without barriers, thereby creating a dangerous trap. Defendant filed an answer denying the acts complained of were done by its agents or employes, but that, on the contrary, the installation of the poles and anchor rods was made by Jud Sedwick, an independent contractor. Defendant brought Sedwick on the record as additional defendant, alleging that any damage done to plaintiff's property or injuries suffered by him were the result of additional defendant's negligence and not that of defendant. Defendant also filed a preliminary objection to the jurisdiction

[ 371 Pa. Page 448]

    on the ground that an action for trespass to land in Indiana County could not be brought in Allegheny County. The court, without objection from plaintiff, thereupon struck from the complaint "the cause of action for damages to the land." It will be noted that this did not deprive plaintiff of the right to pursue his action for trespass on the land and for any damages recoverable in such an action other than those to the land itself, -- in this case an entirely negligible item. Moreover we have held in Bookwalter v. Stewart, 369 Pa. 108, 85 A.2d 100, that an action of trespass on the land may be brought in any county where the defendant can be served; in other words, that it is a transitory action.

The trial resulted in a verdict in favor of the plaintiff and against defendant in the sum of $11,000, and a verdict in favor of the additional defendant. The court overruled defendant's motions for judgment n.o.v. and for a new trial, and ordered that judgment be entered on the verdict, from which judgment defendant now appeals.

It should be immediately obvious that, as far as plaintiff's cause of action was based upon alleged negligence in the failure to cover the hole and erect barriers, the verdict against defendant cannot be sustained. If, as plaintiff claims, Sedwick acted as defendant's agent, there would be a hopeless inconsistency between the verdict in his favor and the verdict against his employer, since, in that event, the latter could be liable only on the principle of respondeat superior; (cf. Ferne, Admrx., v. Chadderton, 363 Pa. 191, 195, 196, 69 A.2d 104, 107). On the other hand, if Sedwick was an independent contractor, it is of course axiomatic that his negligence, or that of his employes, in failing properly to perform the work entrusted to him, could not impose liability upon defendant. Only insofar, therefore, as the action is one for the unauthorized invasion

[ 371 Pa. Page 449]

    of plaintiff's land -- that is, insofar as it is the common law action of quare clausum fregit -- can plaintiff's recovery therein be justified. Defendant maintains that plaintiff, having chosen to proceed on the theory that defendant was negligent,*fn2 cannot uphold the verdict in his favor on the ground that it was nevertheless justified on a different theory of liability; in support of that argument defendant cites the case of Kramer, Admr., v. Pittsburgh Coal Company, 341 Pa. 379, 19 A.2d 362. There, however, the verdict was for defendant, and plaintiff then claimed that the case should have been submitted to the jury on a theory different from, or in addition to, the on which it was presented to them. Here, however, the verdict was for plaintiff, and, if the complaint stated a cause of action and the evidence supported the allegations, plaintiff was entitled to recover, whatever the legal theory on which the liability might be based: Federoff v. Harrison Construction Co., 362 Pa. 181, 66 A.2d 817.

Before considering the question of the liability of a trespasser for personal injuries suffered by the possessor of land as an ...

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