Briggs v. City of Philadelphia

CourtSuperior Court of Pennsylvania
Writing for the CourtBALDRIGE, Judge.
Citation170 A. 871
PartiesBRIGGS et al. v. CITY OF PHILADELPHIA et al.
Decision Date01 February 1934
170 A. 871

BRIGGS et al.
v.
CITY OF PHILADELPHIA et al.

Superior Court of Pennsylvania.

Feb. 1, 1934.


170 A. 871

Appeals Nos. 311, 312, October term, 1933, from judgments of Court of Common Pleas No. 1, Philadelphia County; No. 3277, June term, 1930; Harry S. McDevitt, President Judge.

Trespass for personal Injuries in fall on defective sidewalk by Helen Briggs, by her next friend, and others against the City of Philadelphia, in which Harry Briggs and the Germantown Trust Company were brought in as additional defendants. Judgment for plaintiff Helen Briggs for $1,200, and for the City of Philadelphia against Harry Briggs for $1,200, and the City of Philadelphia appeals.

Affirmed as to plaintiff's recovery against city, judgment in favor of the Germantown Trust Company reversed with venire.

Argued before TREXLER, P. J., and KELLER, CUNNINGHAM, BALDRIGE, STADTFELD, PARKER, and JAMES, JJ.

Israel K. Levy, Harry S. Platowsky, and John J. K. Caskie, Asst. City Sols., and David J. Smyth, City Sol., all of Philadelphia, for appellant.

Frank J. Eustace, Jr., and Wilson & McAdams, all of Philadelphia, for appellee Helen Briggs.

A. F. Barbierl, J. W. McWilliams, and Tustin & Wesley, all of Philadelphia, for appellee Trust Co.

BALDRIGE, Judge.

On August 15, 1928, at 7:30 o'clock in the evening, Helen Briggs, seven years of age, while running in a game of hide and go seek, caught her foot in a hole in the sidewalk, fell over against a lamp post, and was injured. The accident occurred in front of her home, 5223 Morris street, in the city of Philadelphia. An action in trespass was instituted by Helen Briggs, by her next friend and father, Harry Briggs, and her parents, Harry Briggs and Marion Briggs, in their own rights, against the city of Philadelphia. The original defendant issued two writs of scire facias to join, as additional defendants, Harry Briggs, as the lessee of the property, and the Germantown Trust Company, as owner. The jury rendered a verdict in favor of the minor plaintiff, Helen Briggs, against the city

170 A. 872

of Philadelphia, in the sum of $1,200, and, by direction of the court, the jury returned a verdict in favor of the city of Philadelphia against Harry Briggs, the tenant, in the sum of $1,200. As the lease contained an express covenant that the tenant should keep and maintain the property in good order and repair, the court further directed that the jury return a verdict in favor of the Germantown Trust Company and against the city of Philadelphia. These two appeals by the city followed. The cases were argued together, and will be disposed of in one opinion.

There is no dispute as to the city's neglect, the child's freedom from contributory negligence, or the amount of the verdict,

The first question for consideration is, Can a minor child recover damages from a municipality for personal injuries sustained by reason of a defect in the sidewalk of a property occupied by her father as tenant, and with whom she was living at the time of the accident? Neither counsel's research nor our own has been rewarded in finding a case squarely decisive of this question.

The city contends that the minor plaintiff is not entitled to recover, as her rights are no greater than the rights of her father as tenant, who owed a primary duty to keep the sidewalk in repair, and, as he cannot recover from one secondarily liable, the city is not responsible to her. The legal status of the minor is different from that of the father as tenant. She had no legal obligation to repair the sidewalk, nor was there an implied or express contractual relation between her and the city or the owner. She, in her play, was using the pavement as a member of the public, and the city owed the same duty to her as to any other person to keep the sidewalk in safe condition. It was not relieved of this independent duty by the failure of the tenant or the owner to repair the defect. It was for this neglect that this suit was brought.

It was expressly ruled in Bucher v. Sunbury Borough, 216 Pa. 89, 95, 64 A. 906, 907, that, if a municipality fails in performance of its duty to keep pavements in a reasonably safe condition for public use, it is liable in damages, and its responsibility is not affected by the question of nonliability of an abutting owner. It was there said: "The right of the appellee to recover in this case is not dependent upon the question of the primary or secondary liability of the borough." See, also, Brookville Borough v. Arthurs, 130 Pa. 501, 18 A. 1076.

Our attention is directed by the appellant to Robinson v. Heverin, 50 Pa. Super. Ct 546, Sessa v. Rozzi, 68 Pa. Super. Ct 593, Thompson et ux. v. Refowich, 85 Pa. Super. Ct 218, and Levin v. City of Philadelphia, 277 Pa. 560, 121 A. 331, in support of the contention that the minor child living with its parents is in no better situation than a parent, as she is a member of his family, occupying the house by virtue of his lease. In all those cases the injury was sustained, not on the sidewalk, but on the demised premises, and they were decided under the rule that in the absence of an express covenant or condition in the lease, there is no implied covenant on the landlord to put the premises in repair or to keep them so. This rule is inapplicable in the case at bar, as the minor plaintiff was injured, not on the demised premises, but on the public sidewalk. The fact that the Injury occurred in front of her home, when she was engaged in play with another child who lived in the neighborhood, did not relieve the city, primarily liable to one using the sidewalk, of its own neglect. We said in City of Butler v. Western Union Teleg. Co., 93 Pa. Super. Ct 533, 538: "No possessory interest in the sidewalk was or could be conferred on the tenant by the owner because the sidewalk is part of the street, though set aside for pedestrians."

The next position of the appellant is that the unemancipated minor may not sue a parent for personal injuries arising out of the negligence of the parent, nor may a recovery be had against the city, as it has a right of indemnity against the father for any recovery; otherwise the minor would be permitted to do indirectly what could not be done directly. This action is not brought against the parent, but against the...

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26 practice notes
  • Downs v. Poulin
    • United States
    • Supreme Judicial Court of Maine (US)
    • January 11, 1966
    ...and society are vitally interested in the integrity of, and harmony in, the family.' Briggs v. City of Philadelphia, 112 Pa.Super. 50, 170 A. 871, 872. Among the jurisdictions approving this rule are: Luster v. Luster, 299 Mass. 480, 13 N.E.2d 438; Oliveria v. Oliveria, 305 Mass. 297, 298, ......
  • Parks v. Parks
    • United States
    • United States State Supreme Court of Pennsylvania
    • October 7, 1957
    ...[390 Pa. 291] There was no common law rule that a child could not sue its parent: Briggs v. City of Philadelphia, 112 Pa.Super. 50, 55, 170 A. 871; Dunlap v. Dunlap, supra. The rule that a child cannot sue its parent has arisen within the past six decades. 4 Page 69 The vast majority of cou......
  • Lastowski v. Norge Coin-O-Matic, Inc., COIN-O-MATI
    • United States
    • New York Supreme Court Appellate Division
    • April 8, 1974
    ...the point (see Chase v. New Haven Waste Material Corp., 111 Conn. 377, 150 A. 107; Briggs v. City of Philadelphia, 112 Pa.Super. 50, 170 A. 871; Winnick v. Kupperman Constr. Co., 29 A.D.2d 261, 287 N.Y.S.2d 329; Sullivan v. Christiensen, Sup., 191 N.Y.S.2d 625). Kemp v. Rockland Leasing, In......
  • Ryan v. Fahey
    • United States
    • New York Supreme Court Appellate Division
    • February 22, 1974
    ...for indemnification (Chase v. New Haven Waste Material Corp., 111 Conn. 377, 150 A. 107; Briggs v. City of Philadelphia, 112 Pa.Super. 50, 170 A. 871) and, in others, the child could sue his parent directly in such situations (Dunlap v. Dunlap, 84 N.H. 352, 150 A. 905; [43 A.D.2d 432] Signs......
  • Request a trial to view additional results
26 cases
  • Downs v. Poulin
    • United States
    • Supreme Judicial Court of Maine (US)
    • January 11, 1966
    ...and society are vitally interested in the integrity of, and harmony in, the family.' Briggs v. City of Philadelphia, 112 Pa.Super. 50, 170 A. 871, 872. Among the jurisdictions approving this rule are: Luster v. Luster, 299 Mass. 480, 13 N.E.2d 438; Oliveria v. Oliveria, 305 Mass. 297, 298, ......
  • Parks v. Parks
    • United States
    • United States State Supreme Court of Pennsylvania
    • October 7, 1957
    ...[390 Pa. 291] There was no common law rule that a child could not sue its parent: Briggs v. City of Philadelphia, 112 Pa.Super. 50, 55, 170 A. 871; Dunlap v. Dunlap, supra. The rule that a child cannot sue its parent has arisen within the past six decades. 4 Page 69 The vast majority of cou......
  • Lastowski v. Norge Coin-O-Matic, Inc., COIN-O-MATI
    • United States
    • New York Supreme Court Appellate Division
    • April 8, 1974
    ...the point (see Chase v. New Haven Waste Material Corp., 111 Conn. 377, 150 A. 107; Briggs v. City of Philadelphia, 112 Pa.Super. 50, 170 A. 871; Winnick v. Kupperman Constr. Co., 29 A.D.2d 261, 287 N.Y.S.2d 329; Sullivan v. Christiensen, Sup., 191 N.Y.S.2d 625). Kemp v. Rockland Leasing, In......
  • Ryan v. Fahey
    • United States
    • New York Supreme Court Appellate Division
    • February 22, 1974
    ...for indemnification (Chase v. New Haven Waste Material Corp., 111 Conn. 377, 150 A. 107; Briggs v. City of Philadelphia, 112 Pa.Super. 50, 170 A. 871) and, in others, the child could sue his parent directly in such situations (Dunlap v. Dunlap, 84 N.H. 352, 150 A. 905; [43 A.D.2d 432] Signs......
  • Request a trial to view additional results

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