Lehigh Coal & Navigation Co. v. Brown , 100 Pa. 338 ( 1882 )

Mr. Justice Sterrett

delivered the opinion of the court, October 5th 1882.

It is conceded the plaintiffs below were not entitled to recover back the amount of tolls paid by them to the Lehigh Coal and Navigation Company without proving to the satisfaction of the jury, 1st. That the Navigation Company wrongfully and without authority demanded and collected the tolls in question ; and, 2d. That the payment of the tolls by the plaintiffs was involuntary. If they failed to establish either of these propositions the verdict should have been in favor of the defendant below.

The question involved in the former proposition is presented by the first three specifications of error. In disposing of it the court below was called upon to construe the charter of the Navigation Company, including the several acts supplementary thereto. This has been so fully and satisfactorily done by the learned judge in his general charge and answers to points submitted by counsel, that it is unnecessary to add anything to what is there said. Having thus correctly construed the several Acts of Assembly bearing on the subject, he then instructed the jury that the Navigation Company was not authorized to collect tolls on logs floated down the Lehigh River to the mouth of "Wright’s Creek if they found from the evidence that the artificial navigation was destroyed in 1862, and the company had' neither reconstructed nor elected to reconstruct the same. As to these matters of fact there was practically no conflict of testimony, and the verdict being in favor of the plaintiffs below, the question of the Navigation Company’s right to collect the tolls in controversy was thereby determined in the negative. We fail to discover any error in the rulings of the court on that subject, and hence the first, second and third assignments are not sustained.

The question involved in the second proposition, as to whether the tolls in controversy were voluntarily or involuntarily paid, is raised by the fourth, fifth and sixth specifications. The complaint in the fourth assignment is, that the court refused to affirm defendant’s second, third and fourth points, and thereby withdraw the question of involuntary payment from the jury. Under the testimony in the case that became a question of fact for the jury, and it appears to have been submitted to them with proper instructions. In affirming the second point of plaintiffs below, which is the subject of complaint in the fifth assignment, the learned judge charged the jury that if the plaintiffs denied the right of the company to collect the tolls : that the company threatened to stop their logs, in case of non-payment, by drawing the water from the dams at White Haven; that it had the ability to carry the threat into execution, and that the tolls were paid under such a state of facts, then the payments’were not voluntary and may be recovered. He also charged in answering the point covered by the sixth assignment, that if the payments were made under a threatened exercise of power (possessed or supposed by the plaintiffs to be possessed by the company) by its agent or servant acting within the general scope of his authority over the property of the plaintiffs, the money thus paid can be recovered ; but the threat of an agent, not acting within the general scope of his authority, would not make a payment to him under those circumstances involuntary. In further elucidation of these instructions, the learned judge in his general charge summarized the facts, which the plaintiffs below were required to prove before they could recover, as follows, to wit: That their mill was located on the company’s pool; that the company had the power to draw off the water in the pool; that such action would render it practically impossible to got out their logs, and thus prevent them from using the stream for the purpose of floating or driving logs from their lands above ; that the plaintiffs denied the right of the company to collect the tolls in question; that the company or its agent, acting within the general scope of his authority, before the tolls were paid and before the logs were delivered, declared to plaintiffs that if the tolls were not paid the water would be drawn off from the dams, and plaintiffs would have been thus prevented from getting out their logs if the threat had been executed, and that this threat was repeated from time to time, and was the cause which induced the plaintiffs to make the payments. Assuming, as we must necessarily do, that the jury obeyed their instructions, the facts above specified are conclusively established by their verdict. Can there be any doubt, then, that upon the facts so found the plaintiffs below were entitled to recover? We think not. They bring the case fairly within the rule stated by Mr. Justice Field in Brumagim v. Tillinghast, 18 California 272, in which, after discussing the English and American cases on the subject of involuntary payments, he says : “ What shall constitute the compulsion or coercion which the law will recognize as sufficient to render the payments involuntary, may often be a question of difficulty. It may be said in general that there must be some actual or threatened exercise of power, possessed or supposed to be possessed by the party exacting or receiving the payment, from which the latter has no other means of immediate relief.” According to the finding of the jury in the case before us, there was a threatened exercise of power possessed by the company which, if it had been carried into execution, would have practically ruined the business of the plaintiffs below. The jury has found that the threat, repeated from time to time, had the effect of coercing payment of the tolls. The plaintiffs below liacT no other means of immediate relief. They were compelled either to submit to the unlawful demand of the company or run the risk of having their business practically destroyed or seriously interrupted. The same general principle is recognized in some of our own cases : Hospital v. Philadelphia Co., 12 Harris 229; White v. Heylman, 10 Casey 142; Motz v. Mitchell, 10 Norris 114; and cases there cited. In the former case it is said “ where a party has been compelled by duress of his person or goods to pay money for which he is not liable, it is not voluntary, and he may rescue himself from such duress by payment of the money, and after-wards, on proof of the fact, recover it back;” and in support of this doctrine Astley v. Reynolds, 2 Strange 915, is there cited. In that case the plaintiff had pawned a lot of plate as security for a loan of twenty pounds. In due time he offered to redeem the pledge, and in addition to the principal tendered more than sufficient to cover the interest to which defendant was entitled; but the latter demanded ten pounds interest. After repeating the tender without success he finally yielded to the exorbitant demand of defendant, paid the ten pounds, and then brought suit to recover the excess over the legal interest. It was contended that the payment being made, with .full knowledge of all the facts, was voluntary; and that plaintiff having made a sufficient tender might have maintained an action of trover and conversion, &c., but the court in entering judgment in his favor said: “ The plaintiff might have such immediate want of his goods that an action of trover would not do his business. Where the rule, mlunti non fit injuria, is applied, it must be where the party had his freedom of exercising his will, which this man had not. We must take it that he paid the money, relying on his legal remedy to get it back again.”

The remaining assignments are not sustained. The testimony was quite sufficient to justify the court in submitting the question of involuntary payment to the jury. There is no error in the ruling of the court in regard to interest.

Judgment aílirméd.