Cleary v. Quaker City Cab Co.

• Decision Date: 01 February 1926
• Docket Number: 362
• Citation: Cleary v. Quaker City Cab Co., 285 Pa. 241, 132 A. 185 (Pa. 1926)
• Parties: Cleary v. Quaker City Cab Co., Appellant, et al
• Court: Pennsylvania Supreme Court

132 A. 185

285 Pa. 241

Cleary v. Quaker City Cab Co., Appellant, et al

No. 362

Supreme Court of Pennsylvania

February 1, 1926

Argued January 5, 1926

Appeal, No. 362, Jan. T., 1925, by Quaker City Cab Co. defendant, from judgment of C.P. No. 2, Phila. Co., Dec. T. 1922, No. 5209, on verdict for plaintiff, in case of Patrick Cleary v. Quaker City Cab Co. and Public Ledger Co. Affirmed.

Trespass for personal injuries. Before LEWIS, J.

The opinion of the Supreme Court states the facts.

Nonsuit as to Public Ledger Co.; refusal to take off.

Verdict and judgment for plaintiff for $5,000 against the Quaker City Cab Co. Quaker City Cab Co. appealed.

Errors assigned were (1) refusal to take off nonsuit as to the Public Ledger Co. codefendant, and (2) refusal of binding instructions for defendant, Quaker City Cab Co., quoting record.

The judgment is affirmed.

Wm. W. Smithers, of Smithers, Lank & Horan, for appellant. -- The court below had no authority to grant a nonsuit under the Joint Suit Act of June 29, 1923, P.L. 981, and the language used in giving decision to do so tended to prejudice the jury against the cab company as remaining sole defendant: Weber v. Greenebaum, 270 Pa. 382; Black v. Mark, 273 Pa. 138.

Binding instructions in favor of the defendant cab company should have been given, as requested, because the Joint Suit Act was inapplicable: Minnich v. Ry. Co., 203 Pa. 632; Howard v. Traction Co., 195 Pa. 391; Dutton v. Boro., 198 Pa. 563; Wiest v. Traction Co., 200 Pa. 148; Rowland v. Phila., 202 Pa. 50.

Joint Suit Act of 1923, is unconstitutional as a violation of article III, section 3, thereof: Strain v. Kern, 277 Pa. 209; Spangler's Est., 281 Pa. 118; Investor's Realth Co. v. Harrisburg, 281 Pa. 200; Miller v. Belmont Co., 268 Pa. 51.

Thomas James Meagher, for appellee. -- There was nothing prejudicial to appellant in the reasons that the learned trial judge gave for the entry of the nonsuit.

The most that appellant's argument could succeed in accomplishing would be that the nonsuit itself as to its codefendant was erroneous and, in that sense, prejudicial to the present appellant but, if that be the case, it not only took no exception to the reasons on the score of their prejudice to it but it likewise took no exception to the entry of the nonsuit itself: Gates v. Keichline, 282 Pa. 584.

A nonsuit is plainly within the purview of the Joint Suit Act of June 29, 1923, P.L. 981, under the same circumstances and under the same rules of law as a nonsuit is proper in any other class of tort actions.

The refusal to grant binding instructions in favor of appellant is not now open to review.

But, even were it open to review, the Joint Suit Act of 1923 relates solely to procedure, does not purport to deal with the substantive rights of litigants and, therefore, applies to cases pending at the time of its enactment.

The statute is constitutional: Com. v. Keystone Benefit Assn., 171 Pa. 465; 1 Pepper & Lewis Digest, col. 103.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. CHIEF JUSTICE MOSCHZISKER:

Patrick Cleary, who was a passenger in a taxicab, recovered damages for personal injuries caused by what the jury found to be the negligence of its driver. The suit was brought against two defendants, the Quaker City Cab Company, a common carrier (appellant), and the Public Ledger Company, plaintiff alleging in his statement of claim that he was injured through their combined negligence. At the trial, after plaintiff had produced his case in full, the presiding judge concluded there was no evidence to sustain a verdict against the last-named defendant, and accordingly, entered a nonsuit as to it. The other defendant, against which judgment was entered on a verdict, has appealed, complaining of the refusal of its motion to remove this nonsuit.

In entering the nonsuit, the trial judge followed what he conceived to be the practice provided by the Act of June 29, 1923, P.L. 981. The title of this statute reads thus: "An act relating to procedure in suits wherein it is pleaded that two or more defendants are liable for a specified cause of action"; and the act itself provides means whereby the trial of causes may be proceeded with promptly when the statement of claim avers that "two or more defendants are jointly liable," but it develops at trial that the averment as to a joint liability on the part of all of the defendants is not sustained by the evidence, or where the trial judge has a doubt concerning the legal sufficiency of the evidence in that respect.

Appellant states four questions involved, and these will be disposed of specifically as we proceed; under one of them, it contends that the Act of 1923 offends against article III, section 3, of the Constitution of Pennsylvania, providing that no bill shall contain more than one subject, which shall be clearly expressed in its title. As to this, it is sufficient to say that the present statute contains but one subject, which is expressed with sufficient clearness in its title. The act was evidently drawn to remedy a procedural difficulty which existed in our law when two or more defendants were charged with joint liability and it was not proved as alleged; this purpose is amply covered by the title employed. Under the old law, as established by our cases, an action could not be sustained against either of two defendants, charged with joint liability, where it developed at trial that though one might be separately liable the other was not; that is to say, a joint tort had to be proved: see Dutton v. Lansdowne Boro., 198 Pa. 563; Rowland v. Phila., 202 Pa. 50, 51; Minnich v. Electric Ry. Co., 203 Pa. 632, 636, 637; City of Bradford v. Barry, 254 Pa. 303, 308; Polis v. Heizmann, 276 Pa. 315, 317. When, for instance, a joint tort was charged, but it appeared that the acts of the various defendants, or certain of them, though happening at the same time, constituted separate torts, and, therefore, not joint torts, the trial could not be carried on until all nonjoint tort-feasors were eliminated, by nonsuit or otherwise, and the pleadings amended accordingly (Rowland v. Phila., 202 Pa. 50, 51, 52; Booth v. Dorsey, 202 Pa. 381, 383, 384, 386; Minnich v. Electric Ry. Co., 203 Pa. 632, 636, 637; Goodman v. Coal Twp., 206 Pa. 621, 624; Sturzebecker v. Inland Traction Co., 211 Pa. 156, 159, 160); and, under such circumstances, the right to amend was subject to a privilege in the remaining defendants, on pleading surprise, to have a continuance: Rowland v. Phila., supra, 52; Minnich v. Elec. Ry. Co., supra, 636. Doubtless it was to meet this condition of affairs and to give a practical and speedy remedy in such cases that the Act of 1923 was passed. Since the statute deals with procedure alone, and affects no substantive rights, it applies to all cases within its purview, whether arising prior to its enactment or thereafter (Kille v. Reading Iron Works, 134 Pa. 225, 227; King v. Security Co., 241 Pa. 547, 551; Kuca v. Lehigh V. Coal Co., 268 Pa. 163, 166); this determines a second of the questions stated for our decision.

The other two questions placed before us by appellant, when taken together, raise the point as to whether plaintiff's statement of claim avers a joint tort or only two separate torts happening at the same time. In one of these questions appellant treats the case as having to do with a joint tort, and, in the other, as involving two separate, though, in the above sense, "concurrent," torts. In this connection, however, it is sufficient to say that, as we view the statement of claim, it avers a joint tort in the sense of "a community of fault which occasioned the injury" (see Howard v. Union Traction Co., 195 Pa. 391, 395; O'Malley v. Phila. R.T. Co., 248 Pa. 292; Goldmen v. Mitchell-Fletcher Co., 285 Pa. 116; see also Hitchins v. Wilson, 68 Pa.Super. 366); but if, on the contrary, this pleading be read as alleging two separate torts, as distinguished from a joint tort, then, without regard to the Act of 1923, the nonsuit would have been warranted, and, in the absence of objection entered by appellant to the trial proceeding, it cannot now complain: Rowland v. Phila., 202 Pa. 50, 51, 52. This disposes of a third question stated for our decision.

The remaining question involved, referred to above, is phrased by appellant thus, "Whether under the Joint Suit Act of 1923 a trial judge is authorized to enter a nonsuit as to one of two joint defendants in tort and permit the trial to proceed against the other one, where the facts are in dispute?" This requires a construction of the statute and a brief review of the state of the evidence when the nonsuit was entered.

The act in question provides: "Whenever it is pleaded in any suit that two or more defendants are jointly liable for the cause of action specified, and [1], in the opinion of the trial judge, the evidence may not justify a recovery against some of them, the suit shall not be dismissed as to all, but the case shall be submitted to the jury, if the facts are in dispute, to determine which, if any of them, are liable, or, [2] if the facts are not in dispute, the question of liability of any or all of them may be reserved for consideration by the court in bace, or [3] the suit may be dismissed as to some and the trial proceed against the others, in every such contingency with the same effect as if the defendants ultimately found to be liable were the only ones [originally] alleged to be so."

The statutory provision marked "[1]" above is meant to cover cases where the plaintiff avers in his statement of claim that the defendants named by him are "jointly liable," but, when all the evidence is taken, the trial judge feels that a...