Walden v. Finch , 70 Pa. 460 ( 1872 )

The opinion of the court was delivered, May 13th 1872, by

Agnew, J.

— There are but two questions in this record which need to be noticed. The first, upon the admission of testimony to contradict Kemble and Kerr, without having called the attention of these witnesses to the conversations intended to be proved, is an unsettled question in this state, as may be seen in the diverse decisions cited in the argument. The practice has arisen out of regard to the witness himself to enable him to explain any seeming discrepancy in his statements. Yet it must necessarily have its just boundary, or otherwise it leads to the sacrifice of the interests of the parties litigant. In some cases a court -would feel bound to require the witness intended to be contradicted to be first examined, and his attention called to the supposed contradiction. Yet there are others where an unbending rule to this effect would work great hardship. Thus where, as in this case, the witnesses have been already examined under a rule or a commission at a distant place, preparatory to the trial, it would often be difficult to foresee, sometimes impossible to foreknow, the questions to be put to the witness on cross-examination in order to lay ground to contradict him. Indeed in such cases unworthy witnesses might be purposely examined under a rule at a distance in order to prevent the ground from being laid. The names of the witnesses are seldom given who are examined under rules within the state, and even when examined under commissions the witnesses are not always named. It would be unjust to the party in such a case to deprive him of the opportunity of contradicting unworthy witnesses. We are therefore of opinion that those decisions of our own court are to be preferred which hold that the question is one of sound discretion in the judge trying the cause upon the circumstances before him. Where the witnesses are all present, and the contradiction tends seriously to impair the credibility of the witness, or to reflect upon his character, a court would feel bound to give him the opportunity of explanation or denial, before suffering his testimony to be impeached by counter statements. Under different circumstances a court would feel it proper to relax the rule. An abuse of this discretion would be corrected, but we discover none in the present instance.

The second question arises upon the charge. The judge said to the jury: “ And I state to you that if the warehouse was planned by a competent architect, and specifications made by him, and the building was constructed under the directions of such an architect by competent employees, and with suitable material, in conformity with the plans and specifications, the defendant would not be liable to the plaintiffs for the injury complained of.” There was evidence that the building was constructed under the direction of Kemble, an architect, and according to the plan of Kerr, the chief architect, though this was strongly contradicted. There were contradictions also as to competency of the employees and the materials. The evidence necessarily went to the jury, and the facts were fairly submitted. The only real question is, therefore, whether the principle contained in the judge’s charge is correct as a matter of law. The principle appears to be this: that when the owner of a building has done all in his power to erecta safe structure for the purpose for which it is to be used, he is not liable to others for its occult defects. Of course this is to be taken with the qualification that he had no knowledge of the defect, and no reason to lead him to'believe the building to be unsafe. No question of a scienter appears in the case, and we must take the meaning of the court to be as thus qualified. So far as we can gather from the paper-book the case appears to have gone to the jury solely on the question of negligence. The declaration is not printed in the paper-book, and the argument makes no reference to any other question. We must assume, therefore, that no question arose on the contract of storage, whatever were its terms. How far one who takes goods to store for him will be responsible on his contract for storage, must often depend on the nature of the contract; but assuming in this case, as we must from the paper-book, that the only question was that of negligence in erecting the warehouse, as a house for storage, we cannot discover any error in the instruction of the court. The principle would be one of unusual and unreasonable scope, if the owner of a building should be held to be liable to the depositor of goods, for unknown and hidden defects in the structure, when he has taken all proper care to make it safe. As life and personal security are more valuable than goods, the principle would extend to a dwelling-house; and one who has friends to dine with him, or who has invited them to a reception, might find himself ruined in fortune, as well as agonized in feelings, by an untoward accident which has maimed or killed his guests. Those things which we now term accidents or misfortunes, would then be faults, and be followed by civil penalties. But merely good faith and reasonable prudence are all that can be required of the owner of such a building, and when he has shown that he has honestly taken all the pains he can to make his structure safe and adapted to the purpose for which it is to be used, the person who stores his property in it, if he would require a greater security, should provide for it in his contract. A severer rule would lead to consequences so harsh, no one would reasonably undertake to suffer them when he builds,' and would indeed tend to discourage improvement.

Judgment affirmed.