Hanley v. Ryan

• Decision Date: 26 February 1926
• Docket Number: 160-1925,327-1925
• Parties: Hanley et ux. v. Ryan et ux., Appellants
• Court: Pennsylvania Superior Court

87 Pa.Super. 6

Hanley et ux. v. Ryan et ux., Appellants

Nos. 160-1925, 327-1925

Superior Court of Pennsylvania

February 26, 1926

Argued October 16, 1925

Appeals by defendants, from judgment of C.P. No. 2 Philadelphia County-1921, No. 3309, in the case of Florence May Hanley and Raymond Hanley v. Daniel F. Ryan and Helen M Ryan.

Trespass to recover damages for personal injuries. Before Stern, P. J.

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

Verdict for plaintiffs in the sum of $ 500. for Florence May Hanley and $ 1,000. for Raymond Hanley and judgment thereon. Defendants appealed.

Error assigned was, among others, permitting the plaintiffs to amend their statement of claim.

Reversed.

John G. Kaufman for appellants. -- The amendment of the statement of claim should not have been allowed: Fields v. P.R. T. Co., 273 __ Pa. __, 282; Martin v. Pittsburgh R. R. Co., 227 __ Pa. __, 18; Noonan v. Pardee, 200 __ Pa. __, 474; McCullough v. P.R. T., 61 Pa.Super. 384; Goldberg v. Freidrich, 279 __ Pa. __, 572.

Michael D. Hayes, and with him Francis M. McAdams and William H. Wilson, for appellees. -- The amendment was properly allowed: McKane v. Philadelphia, 78 Pa.Super. 168; Phillips v. Erie Co. Elec. Co., 249 Pa. 445; Gail v. Philadelphia, 273 __ Pa. __, 275.

Before Porter, Henderson, Trexler, Keller, Linn and Gawthrop, JJ.

OPINION

KELLER, J.

The main question raised by these appeals is the right of the plaintiffs to amend their statement of claim upon a material matter, which changed the character of evidence necessary in the action and affected substantial rights of the defendant, after the statute of limitations had barred a new action.

On November 23, 1919, about midnight, Mrs. Hanley, one of the plaintiffs, while walking on Market Street, Philadelphia, between Fifty-ninth and Sixtieth Streets, was injured by the giving way of an iron cellar door in the sidewalk. On February 3, 1921 she and her husband brought an action of trespass against Daniel F. Ryan, one of these defendants, and in her statement of claim averred that she had been hurt by the collapse of the iron cellar door of property 5908 Market Street, belonging to said defendant. Daniel F. Ryan filed an affidavit of defense averring that premises 5908 Market Street were owned by him and his wife, Helen M. Ryan, the other defendant in this action as tenants by entireties and denying that the cellar door on said premises had collapsed or was in a defective condition.

On June 23, 1921, without discontinuing the former action, the plaintiffs brought this action in trespass. Again the statement of claim averred that Mrs. Hanley had been injurd by the collapse of the iron cellar door in the sidewalk of premises 5908 Market St. belonging to defendants, and alleged its long-standing defective condition. Defendants filed an affidavit of defense denying the collapse or defective condition of the cellar door.

The case came up for trial on December 13, 1923, when plaintiffs moved to amend their statement by changing the locus in quo to 5916 Market Street. Defendants objected, pleaded surprise and excepted to the order allowing the amendment.

On the trial upon the amended statement, March 2, 1925, defendants' objections to testimony relating to 5916 Market Street were overruled and verdicts were rendered for the plaintiffs upon which judgments were duly entered.

Defendants were the owners and occupiers of 5908 Market Street. They were also the owners but not the occupiers of 5916 Market Street. The latter premises had been occupied for some years by one Littlefield who was in possession as tenant when defendants bought the property in 1916 and remained in possession under several leases until December, 1919. The leases provided that the lessee, Littlefield, should keep the premises in good condition, order and repair and do all repairing necessary to keep the property in good condition, except repairing the main roof and painting the outside woodwork and repairing chimneys.

The defendants' liability as respects the two properties was different. As to 5908, which they owned and occupied, their duty as respects the safety of the premises was primary and absolute; as to 5916 the primary duty rested on the tenant, Littlefield, not only by reason of the implied obligation of a tenant to make repairs, (Long v. Fitzimmons, 1 Watts & Serg. 530), but also because of his express covenant to do so. Defendants were not liable to the public for the defective condition of the premises unless they were not in good repair when leased or unless they had bound themselves by the lease to keep them in repair: Bears v. Ambler, 9 Pa. 193; Lindstrom v. Penna Co., 212 Pa. 391, 61 A. 940; Chroust v. B. & L. Assn., 214 Pa. 179, 63 A. 595; Cunningham v. Rogers, 225 Pa. 132, 136, 73 A. 1094; Levick v. Patterson Co., 65 Pa.Super. 261; Phila. v. Bergdoll, 252 Pa. 545, 551, 97 A. 736; Coupland v. Hardingham, 3 Campbell 398; Payne v. Rogers, 2 H. Bl. 349. A new and different issue was thus injected into the case by the amendment, to wit, did the defective condition complained of exist when the lease to Littlefield was made, or when it was renewed by the lease in force when the accident occurred: McLaughlin v. Kelly, 230 Pa. 251, 79 A. 552.

But another consideration enters into the case. While it is true that the covenant in the lease requiring the lessee to make repairs did not operate to relieve the lessor from a duty resting on him when the contract was executed nor discharge the lessor from his responsibility to the public or third persons, (Folkman v. Lauer, 244 Pa. 605, 607, 91 A. 218; Kane v. Lauer, 52 Pa.Super. 467), nevertheless it established a relation between the parties to the lease which entitled the landlord to indemnity from the tenant in case the former was required to pay damages to a third person through the neglect of the tenant to keep the leased premises in repair as covenanted. This right is recognized in Folkman v. Lauer, supra, Kane v. Lauer, supra, Brown v. White, 202 Pa. 297, 311, 51 A. 962, Fowler v. Jersey Shore, 17 Pa.Super. 366, 372, 373, and Orth v. Consumers Gas Co., 280 Pa. 118, 124 A. 296. It is established in other jurisdictions: Oceanic Steam Nav. Co. v. Compania Trans. Esp., 134 N.Y. 461, 31 N.E. 987; Scott v. Curtis, 195 N.Y. 424, 88 N.E. 794, 40 L. R. A. N. S. 1147; Gray v. Boston Gas Light Co., 114 Mass. 149; Churchill v. Holt, 127 Mass. 165; Penna. Steel Co. v. W. & B. Bridge Co., 194 F. 1011; Trego v. Rubovits, 178 Ill.App. 127. It is similar in principle to the right of a municipality to recover from the owner or occupant primarily liable for the care of a sidewalk the damages which it has been required to pay to a third person by virtue of its secondary liability: Brookville Boro. v. Arthurs, 130 Pa. 501, 152 Pa. 334; Reading City v. Reiner, 167 Pa. 41, 31 A. 357; New Castle v. Kurtz, 210 Pa. 183, 59 A. 989. In such cases the parties are not in pari delicto as to each other. The nuisance or neglect is not joint and the rule that one of two joint tort feasors cannot maintain an action for indemnity or contribution does not apply: Churchill v. Holt, supra, Fowler v. Jersey Shore, supra. But in order that the judgment against the party secondarily liable may be used as the basis of suit against the party primarily liable, notice of the pendency of the suit must be given the latter, and opportunity afforded to take part in the defense: Chester v. Schaffer, 24 Pa.Super. 162; Orth v. Consumers Gas Co., supra. When such notice is given, he is no longer regarded as a stranger to the judgment that may be recovered and will be concluded by it whether he appeared or not, as to the points and issues necessarily determined by it; though he is not precluded from setting up any defense which from the nature of the action or the pleadings he could not have interposed in the first action had he been a formal party to it: Fowler v. Jersey Shore, supra. In view, therefore, of Littlefield's express covenants to keep the premises in good condition and repair, defendants had a right of action over against him, irrespective of when the defective condition began, for it was his duty to remedy it: Coupland v. Hardingham, supra; and could use any judgment obtained against them by these plaintiffs as the basis of an action against him, provided, notice of the pendency of the suit was given him and opportunity afforded him to take over the defense of the action. But by reason of plaintiffs' error as to the locus of the accident, persisted in in both suits against these defendants, no notice of any action affecting their tenant, Littlefield, could be given by defendants to him until over four years after the accident, and long after any original action against him by these plaintiffs was barred. And while it is true it has been decided that the statute of limitations does not begin to run in favor of the party primarily liable for the condition of the premises from the date of the accident, but only from the date of the judgment or payment thereof, (Ashley v. L. & W. Coal Co., 232 Pa. 425, 81 A. 442), it was pointed out as an important factor in that case, p. 432, that notice to defend was given within two years of the accident. It would seem but fair that notice should be given to such party within the period fixed by law for the limitation of such actions, if recourse against him is intended.

Thus by plaintiffs' amendment as to the place of the accident we not only have an action requiring a different measure of proof and...