Pennsylvania R. Co. v. Hummel

• Decision Date: 21 January 1909
• Docket Number: 24.
• Citation: 167 F. 89
• Parties: PENNSYLVANIA R. CO. v. HUMMEL.
• Court: U.S. Court of Appeals — Third Circuit

167 F. 89

PENNSYLVANIA R. CO. v. HUMMEL.

No. 24.

United States Court of Appeals, Third Circuit.

January 21, 1909

E. J Sellers, for plaintiff in error.

Thomas Leaming, for defendant in error.

Before DALLAS, Circuit Judge, and LANNING, District Judge.

LANNING District Judge.

This is an action in tort. In the statement of his case, Hummel, the plaintiff below, averred that on March 20, 1907, the Pennsylvania Railroad Company, the defendant below, upon an order of I. P. Thomas & Son, sent certain of its box freight cars upon one of its floats to that firm's private wharf at Mantua Point, N.J., to be loaded with merchandise for shipment by that firm; that the plaintiff, on the day above mentioned, 'occupying the position of foreman for the said I. P. Thomas & Son, was sent by his employers to their private wharf to load the aforesaid cars'; that the plaintiff, 'while lawfully and carefully endeavoring to close a door on one of the aforesaid box cars, was severely and permanently injured, due to the negligence and carelessness of the defendant in sending a car whose door was in a dangerous, unsafe, and rotten condition; that the door of the said car, by reason of the dangerous and unsafe condition in which it was, fell upon, crushed, and severely injured the said Louis

E Hummel, from which injuries he has suffered great pain and distress from thence hitherto, having received a permanent injury to his spine, bruises and contusions, and nervous shock.' Damages were claimed to the amount of $35,000. The plea was not guilty, and the verdict and judgment on the trial were for the plaintiff in the sum of $7,000.

It was conceded on the argument that the liability of the defendant, if any, does not arise out of any contract. The contract set forth in the declaration was one between I. P. Thomas & Son and the defendant, and not between the plaintiff and the defendant. A statute of the state of Pennsylvania (Act May 25, 1887 (P.L. 271)) abolishes, as to procedure, the distinctions between the different actions arising ex contractu, and calls them all actions in assumpsit, and provides that the plea to a statement or declaration in any such action shall be non assumpsit. It abolishes, also, as to procedure, the distinctions between the different actions arising ex delicto, and calls them all actions in trespass, and provides that the plea in any such action shall be 'not guilty.' In the present case, the summons was issued in an action in trespass, the statement or declaration sets forth a cause of action arising ex delicto, and the plea is 'not guilty.' The action is founded, therefore, on an alleged tort, and not on a breach of contract. The case was tried on that theory. We find nothing in the charge to the jury delivered by the learned judge of the court below, or in any other part of the record of the case, that indicates, as counsel for the defendant argues, any confusion on this point. It is true that in the charge reference was made to the contractual relation between the defendant and I. P. Thomas & Son, but the cause of action was not anywhere referred to by the trial court as one based on the contract.

The most important question raised by the assignments of error is whether the defendant owed to the plaintiff the duty of reasonable care in providing cars whose doors could be safely operated. The argument of the defendant's counsel is to the effect that the lex loci delicti commissi is applicable, and that, as the accident to the plaintiff occurred in New Jersey, the law of that state is to be applied. It is not claimed that the law of New Jersey on the point under consideration is statutory. On the contrary, the New Jersey cases referred to by counsel are cases in which the common-law rule on the subject is considered and explained. The federal courts, however, determine for themselves the principles of the common law and of general jurisprudence. Smith v. Alabama, 124 U.S. 478, 8 Sup.Ct. 564, 31 L.Ed. 508; Western Union Tel. Co. v. Call Pub. Co., 181 U.S. 101, 21 Sup.Ct. 561, 45 L.Ed. 765. In their brief the defendant's counsel, after reviewing a number of New Jersey decisions, say:

'It will therefore be observed that by the law of New Jersey-- the lex loci--one injured in consequence of the breach of duty which a defendant owed another pursuant to a contract, express or implied, cannot recover in a suit against such defendant, although, had such breach not occurred, the injury to the plaintiff might have been avoided.'

If, as above stated, the New Jersey courts have extracted such a rule from the principles of the common law, it does not bind a federal court. But as the courts of that state adhere very rigidly to common-law forms of procedure and common-law principles of practice, we have, in our endeavor to ascertain the true common-law rule on the subject of liability in such a case as the one now before us, carefully examined all the New Jersey authorities referred to by defendant's counsel. They are Marvin Safe Co. v. Ward, 46 N.J.Law, 19; Clyne v. Helmes, 61 N.J.Law, 358, 39 A. 767; Styles v. Long Co., 67 N.J.Law, 413, 51 A. 710, and 70 N.J.Law, 302, 57 A. 448; Fielders v. North Jersey St. Ry. Co., 68 N.J.Law, 343, 53 A. 404, 54 A. 822, 59 L.R.A. 455, 96 Am.St.Rep. 552; and Conklin v. Staats, 70 N.J.Law, 771, 59 A. 144. These cases do not support the broad conclusion of counsel. While they hold that A. cannot recover damages from B. for B.'s breach of contract with C., they do not hold that A. may not recover damages from B. for B.'s breach of duty to A. On the contrary, it was said in Marvin Safe Co. v. Ward that:

'There is a class of cases in which a person performing service or doing work under a contract may be held in damages for injuries to third persons, occasioned by negligence or misconduct connected with the execution of the contract, but these are cases where the duty or liability arises independent of the contract.'

In Fielders v. North Jersey St. Ry. Co. it was said:

'A duty, the breach of which is an actionable wrong, may arise from a contract or be imposed by positive law, independent of contract. In the first case, the party to the contract only can sue; in the other case, any person may sue if he be one of the class of persons for whose benefit the duty is imposed.'

In Van Winkle v. American Steam Boiler Co., 52 N.J.Law 240, 19 A. 472 (a case not referred to by counsel), there is an illuminating discussion of the principle. There, the defendant entered into a contract to insure the boiler of the Ivanhoe Paper Company. The policy of insurance provided that the insurer should have the right from time to time to have access to the boiler for the purpose of examining and testing it, and that if the load on the safety valve should at any time exceed that approved by the insurer's inspector, according to his certificate, the policy should be void. It appeared by the averments of the declaration, the truth of which was admitted by the demurrer thereto, that the insurer's inspector had in fact made repeated inspections of the boiler and furnished the required certificates for the guidance of the paper company's engineer. Subsequent to these inspections, and during the life of the...