Geiger v. Madden

• Decision Date: 24 February 1915
• Docket Number: 250-1913
• Citation: 58 Pa.Super. 616
• Parties: Geiger v. Madden, Appellant
• Court: Pennsylvania Superior Court

58 Pa.Super. 616

Geiger v. Madden, Appellant

No. 250-1913

Superior Court of Pennsylvania

February 24, 1915

Argued October 7, 1914 [Syllabus Matter]

Appeal by defendant, from judgment of C.P. No. 2, Phila. Co.-1910 No. 244, on verdict for plaintiff in case of John Geiger by his father and next friend, Franz H. Geiger, and Franz H Geiger v. William E. Madden.

Trespass to recover damages for killing plaintiff's son. Before Sulzberger, J.

It appeared that the defendant was a police officer, and on July 6, 1910, while in citizen's clothes shot and killed the deceased after the latter had broken away from arrest.

The court charged in part as follows:

[I do not understand that there is any defense, except that the shooting was not negligence, that it was just what a reasonable person would have done under the same circumstances. The argument on that subject is probably too futile to merit even consideration. All the world knows that when a man shoots for mere notice he shoots into the air and not upon the ground. Nobody but a fool chooses a public street for the purpose of pistol practice by shooting down to the ground. The police officer who has testified may or may not be telling the truth. My own belief is that he is not. Your belief may be different. My own belief is that he did not look where the man was shooting at all, that it is highly improbable that he looked, and that this is a mere imagination of his for the purpose of helping this fellow officer out, and he thought that shooting down to the ground was a nice way of doing it. As I say, I do not believe he shot down to the ground. I believe he shot straight ahead or else he would not have hit the man in the spine just below the shoulder. But whether he did or not makes no difference. He is not tried here on a charge of murder, though if justice had had her course he would have been tried in the criminal court on a charge of murder, and the arrogant assumption of some coroners that we have had, among others the recreant coroner of that day, to discharge a man who had killed another upon his own unsupported authority, was a monstrous violation of law and cannot be held to be in relief of a party in any case, either in a criminal or a civil suit.] Coroners have no such rights.

[The defendant here therefore is undoubtedly guilty of having negligently shot the plaintiff, and he is therefore liable to pay damages.] The charge that it was willful and malicious having been withdrawn and a charge of negligence having been substituted, punitive damages are not to be inflicted.

Verdict and judgment for plaintiff for $ 900. Defendant appealed.

Errors assigned were portions of charge as above, quoting them, and in allowing the amendment referred to in the opinion of the Superior Court.

Affirmed.

John H. Fow, with him Nathan M. Griffith, for appellant. -- There was no case for the jury: Zimmerman v. Adams Express Co., 240 Pa. 316; Com. v. Long, 17 Pa.Super. 641; Com. v. Pipes, 158 Pa. 25.

The amendment was improper: Lane v. Sayre Water Co., 220 Pa. 599; Grier v. Northern Assurance Co., 183 Pa. 334; Tyrrill v. Lamb, 96 Pa. 464; Moses v. Powers, 7 Pa. Dist. 401; Martin v. Pittsburg Rys. Co., 227 Pa. 18.

Hugh Roberts, for appellee. -- No basis was laid for assignments of error to the charge: Curtis v. Winston, 186 Pa. 492; Leonard v. Leslie, 23 Pa.Super. 63; Warner v. R. R. Co., 39 Pa.Super. 282; Thomas v. Borden, 222 Pa. 184; Thompson v. Petriello, 33 Pa.Super. 651; Dietrich v. Farmers', etc., Ins. Co., 32 Pa.Super. 234.

The case was for the jury: Com. v. Rhoads, 23 Pa.Super. 512; Com. v. Loughhead, 218 Pa. 429.

The amendment was proper: Smith v. Bellows, 77 Pa. 441; Taylor v. Hanlon, 103 Pa. 504.

Before Rice, P. J., Orlady, Head, Henderson, Kephart and Trexler, JJ.

OPINION

RICE, J.

In the statement of claim it was alleged that, while John Geiger was lawfully upon a public street and in the peace of the commonwealth, the defendant discharged a number of shots from a revolver " willfully and maliciously into the body of the said John Geiger," causing the injuries which were described, and that he died as the result of said injuries. At the outset of the trial the plaintiff was permitted, under objection and exception, to amend his statement by substituting " negligently" for " wilfully and maliciously." We cannot agree with counsel that by the allowance of this amendment a new and different cause of action was introduced. And, according to numerous authorities, that is the test. The gist of the action, under the original statement, was the discharge of the shots into the body of Geiger. Giving to the words of the statement a reasonable intendment, a tortious act was sufficiently alleged without the use of the words " wilfully and maliciously." By the amendment no change was made in the allegation of the time, place, physical nature, circumstances, or results of this tortious act. As already indicated, nothing was brought into the case that was not comprehended in the original statement, giving the words a reasonable intendment. There was, it is true, the withdrawal of matters of aggravation, but, as these were not essential to recovery under the statement, no substantial change in the cause of action was made. Moreover, the amendment operated to the benefit, rather than the prejudice, of the defendant, by limiting the recovery in the plaintiff's favor to compensatory damages only. While it has been held that the courts should never permit a party to shift his ground or enlarge its surface, by introducing an entirely new and different cause of action, when by reason of the statute of limitations or some other good reason it would work an injury to the opposite party (Trego v. Lewis, 58 Pa. 463), yet great liberality in the allowance of amendments which do not shift the ground of complaint, as, for example, from one contract or from one tort to another and different one, and do not enlarge the complaint beyond what was practically comprehended in the original pleading, has the just sanction of our statutes of amendment and a multitude of authoritative decisions. See Knapp v. Hartung, 73 Pa. 290; Joynes v. Penna. R. R. Co., 234 Pa. 321; Jackson v. Gunton, 26 Pa.Super. 203; and, particularly, Pitts. Junc. R. R. Co. v. McCutcheon, 18 W.N.C. 527, 4 Sadl. 245. Our conclusion is that the defendant has no reason to complain of the amendment allowed in the present case.

The remaining assignments of error relate to the charge of the court and the negativing of the defendant's point for binding direction. The plaintiff's counsel contends that the charge of the court is not properly before us for review because the only exception taken to it is that which is noted immediately after the stenographer's transcript of it, in these words: " Counsel for defendant excepts to the charge of the court and the answer to point." But as the formal bill of exceptions afterwards sealed by the trial judge and approved in writing by counsel of both parties, recites (after setting forth the charge and the foregoing notation by the stenographer at the end) that " the counsel for ...