Fulco, 194 La. 545, 194 So. 14, 17 (La. 1940); Mansur v. Lentz, 201 Mo.App. 256, 211 S.W. 97, 98 (1919); Com. v. Unkrich, 142 Pa.Super. 591, 597, 16 A.2d 737 (1940); Reynolds v. Rolinson, 8 Pa.Dist. & Co. 8, 16 (1925).
Plaintiffs' reliance on Com. v. Sonneborn, 164 Pa.Super. 493, 66 A.2d 584 (1949), is misplaced. In that case, a prosecution under the Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. § 691.1 et seq., for illegally discharging industrial waste into public waters, the Court stated that 'the defendants' intent is wholly immaterial'. However, the Court was dealing with a voluntary -- even intentional act -- and not with an accidental act. Similarly, Com. ex rel. Shumaker v. New York & Pa. Co., 367 Pa. 40, 79 A.2d 439 (1951), assumes volition on defendant's part.
For these reasons we conclude that the trial judge properly declined to submit to the jury the question of liability based on public nuisance.
Plaintiffs' final complaint is that the trial judge 'erroneously interjected (sic) the issue of preemption.' Their strictures in this connection are wholly unwarranted and present a distorted view of the situation. In a situation in which counsel indicated to the Court that both federal and state legislation might be applicable, it was scarcely error for the trial judge to inquire in a conference with counsel whether either contended for, or had given thought to the question of, possible federal preemption of the field.
At the close of the testimony, the trial judge suggested to counsel that they give some expression to their views on the question of the applicable law -- whether federal, state, or both. The trial judge met with counsel, in chambers, after the trial session on October 3, 1963 and heard the conflicting and, in some respects, uncertain views of counsel on the question. This conference ended with a suggestion by the trial judge that counsel engage in further research overnight and meet with the trial judge in chambers on the following morning to advise the trial judge whether additional thought and research resulted in reconciliation of their viewpoints to any degree. Counsel met with the trial judge in chambers on the morning of October 4th and after further brief discussion, counsel entered into a stipulation which was then recorded at the direction of the trial judge.
Plaintiffs' counsel, inter alia, expressly waived any right to claim to recover under any provisions of the Oil Pollution Act of 1924, 33 U.S.Code, § 131 et seq., or under 33 U.S.Code, § 407, or under any other federal legislation. Defendant's counsel expressly waived any claim that any applicable provision of any applicable Pennsylvania statute was inoperative because of federal preemption of the field. Countrary to plaintiffs' present assertion, the trial judge did not 'request' any stipulation, and no legitimate purpose is served by misrepresentation of fact.
The duty of the trial judge to instruct the jury of the law is of immemorial antiquity, and it seems only normal and natural for the trial judge to obtain counsels' view of the applicable law, particularly in litigation which has had such a long and tortuous history.
We conclude, after careful consideration, that the reasons assigned in support of plaintiffs' motions are without merit, and accordingly make the following
Now, June 30th, 1964, it is ordered that:
1. Plaintiffs' motion for judgment in accordance with their point for binding instruction be, and it is, denied.
2. Plaintiffs' motion for a new trial be, and it is, denied.