Baxter v. Wunder

• Decision Date: 03 March 1927
• Docket Number: 248-1926
• Citation: 89 Pa.Super. 585
• Parties: Baxter v. Wunder, Appellant
• Court: Pennsylvania Superior Court

89 Pa.Super. 585

Baxter v. Wunder, Appellant

No. 248-1926

Superior Court of Pennsylvania

March 3, 1927

Argued October 22, 1926

Appeal by defendant, from order of C. P. No. 2, Philadelphia County-1918, No. 5068, in the case of Mary Baxter, by her father, Patrick Baxter, and the said Patrick Baxter, in his own right, v. William F. Wunder, individually and trading as Quaker City Carnival Company.

Rule to show cause why capias ad satisfaciendum should not be set aside and defendant discharged from custody. Before Lewis, J.

The facts are stated in the opinion of the Superior Court.

The Court discharged the rule. Defendant appealed.

Error assigned was the order of the Court.

Affirmed.

Bryan A. Hermes, for appellant. -- The defendant was not liable for arrest under the circumstances: Blackstone, Book III, Chap 19, page 281; Carroll v. Simons, 27 Pa. County Court Reps. 29; Bassett v. Davis, 1 Clarke's P. L Reps. 310; Reader v. Rosendale, 21 W. N.C. 153; Howzer v. Dellinger, 23 N.C. 475; Judson v. McClelland, 44 N.C. 262; Pierce's Appeal, 103 Pa. 27; Romberger v. Henry, 167 Pa. 314; Dugan v. Read, 167, 393; Colburn v. Colburn, 279 Pa. 249.

Hyman Lebovitz, and with him John Martin Doyle, for appellee.

Before Porter, P. J., Henderson, Trexler, Keller, Linn and Cunningham, JJ.

OPINION

CUNNINGHAM, J.

Appellant obtained in the court below a rule to show cause why a capias ad satisfaciendum issued against him should not be set aside and appellant released from custody. From an order discharging the rule we have this appeal. The only error assigned is the discharging of the rule. A resume of the history of the case is essential to a proper understanding of the questions involved: In 1918 appellant, William C. Rushmer and A. L. Spinney were equal partners in the operation, under the name of Quaker City Carnival Company, of certain amusement devices. In the summer of that year Mary Baxter, then a minor and one of the appellees herein, was injured while riding as a passenger on one of the devices owned by the copartnership and operated by its servants and employes in the City of Philadelphia. In a suit brought by her father in her behalf and in his own right it was alleged that her injuries were due to the negligence of the partners in suffering and permitting the device to be operated while in a dangerous, defective and unfit condition, with the result that a seat or attachment collapsed and fell apart, injuring the minor plaintiff. The action was brought originally against appellant alone and his partners were brought in by amendment. An affidavit of defense was filed and the case came to trial before a jury. None of the defendants seems to have attended in person but counsel appeared for them and participated in the trial. A verdict was duly rendered in favor of the minor for $ 500 and in favor of her father for $ 108, upon which judgment was entered May 5, 1920. No appeal was taken and the judgment remains in full force and effect as the result of an adverse proceeding regularly conducted in a competent tribunal. Nothing seems to have been done looking toward the collection of the judgment until May 28, 1926, when a fi. fa. was issued and returned nulla bona and on the same date a capias ad satisfaciendum was issued upon which one of the defendants, William F. Wunder, the present appellant, was taken into custody and subsequently released upon duly entering security. In his petition for the rule to show cause why the capias should not be set aside appellant sets forth, inter alia, that at the time of the accident he was acting as advance agent for the Quaker City Carnival Company and was in Norristown, Pa. The position of the learned counsel for appellant is that appellant, having been but one of several partners, cannot be arrested and imprisoned on a capias ad satisfaciendum for injuries " not inflicted by him but by the servant, agent or employe of the partnership without command." There is nothing in this record indicating clearly that the negligence for which the damages were recovered was that of the defendants' servants and employes in the operation of the device rather than the negligence of the partners themselves in failing to keep the devices upon which they invited the public to ride in a safe condition for operation. The case however was disposed of by the court below and argued here upon the theory that the negligence involved was the negligence of the servants of the copartnership and we shall dispose of the appeal upon that theory. It is to be noted that this was a capias ad satisfaciendum issued against the person of appellant after failure to collect from his personal or real estate and issued in execution of a judgment entered upon a verdict fixing the amount of damages suffered through the negligence of the servants of a partnership of which he was a member, which negligence was imputed by the jury to appellant and his copartners. It is not a capias ad respondendum for the commencement of an action of negligence. The action was commenced by a summons in trespass.

It was held in Carroll v. Simons, 27 Pa.Cmwlth. 29, that an action of this kind cannot be commenced by a capias because it is an action for damages uncertain in amount and incapable of being measured by a fixed standard, and the amount of bail ought not therefore to be regulated by the amount of plaintiff's demand. Concluding his opinion in that case Judge Arnold, after citing a case in which a husband who had been arrested for a tort committed by his wife was discharged on common bail, said " We have no hesitation in saying that in actions for damages for injuries not inflicted by the defendant, but by his servant...