Holmes v. Pennsylvania R. Co.
| Decision Date | 02 March 1908 |
| Docket Number | 184 |
| Citation | 69 A. 597,220 Pa. 189 |
| Parties | Holmes v. Pennsylvania Railroad Company, Appellant |
| Court | Pennsylvania Supreme Court |
Argued January 7, 1908
Appeal, No. 184, Jan. T., 1907, by defendant, from judgment of C.P. No. 5, Phila. Co., June T., 1905, No. 3,035, on verdict for plaintiff in case of William A. Holmes v Pennsylvania Railroad Company. Reversed.
Trespass to recover damages for death of plaintiff's minor son. Before RALSTON, J.
At the trial the court permitted the record to be amended by adding the name of Edith Elizabeth Holmes, the decedent's mother, as a party plaintiff. [1]
When the plaintiff was on the stand he was asked the following question:
Objected to.
The Court: I am not sure that it would not be admissible to show sales made by the company in this territory.
Mr Brown: If he did as well as or better than his father had done in the spring, it would be fair to assume I think that he would have done as well or better in the fall.
Mr. Archibald:
Objected to.
The Court: Here is a boy who gets his commission on the business done by the company whether he has anything to do with securing the business or not. Is it fair, therefore, to take the average business of the company for years before and since his death?
Mr. Barnes: The business of the company in this section is obtained by the agent who goes through the section. Now, therefore, while it is said that the boy had an opportunity to take commissions on all sales in the section, the sales for the preceding year were made by this man with his experience and knowledge of the places and the following that he had. It seems to me that it comes back to the same question that we had before, and that you cannot bind the defendant in this way. We have heard that there were two trips in a year and that he had completed one trip.
Mr. Barnes: $1,018.25.
The Court: You may offer to show the total sales made for one or two years each way.
Objected to. Objection overruled. Exception for defendant.
Mr. Barnes: I object generally because it is incompetent and irrelevant and especially because the testimony already shows that the sales were made in the preceding year in the territory in question by the plaintiff as the sales agent.
Mr. Archibald:
Objected to as irrelevant and incompetent and especially because the testimony already shows that the sales were made in the preceding year in the territory in question by the plaintiff as the sales agent. Objection overruled. Exception for defendant. [7]
Verdict and judgment for plaintiff for $10,500. Defendant appealed.
Errors assigned were (1, 7) above rulings.
The judgment is reversed with a venire facias de novo:
John Hampton Barnes, for appellant. -- The action cannot be sustained because brought in the name of the father only: Waltz v. R.R. Co., 216 Pa. 165; Kerr v. Penna. R.R. Co., 169 Pa. 95; Grier v. Northern Assurance Co., 183 Pa. 334; La Bar v. New York, S. & W.R.R. Co., 218 Pa. 261; Huntingdon & Broad Top R.R. Co. v. Decker, 84 Pa. 419; Ry. Co. v. Needham, 52 Fed. Repr. 371.
The measure of damages for the wrong resulting from the decedent's death was erroneous.
Francis Shunk Brown, of Simpson & Brown, with him Robert W. Archbald, Jr., for appellees. -- The father could recover his own damages in a suit by him alone: Kerr v. Penna. R.R. Co., 169 Pa. 95.
The introduction of new parties which the cases say is prevented by the statute of limitations, must be such a change as alters the cause of action: Smith v. Bellows, 77 Pa. 441; Wolf v. Wolf, 158 Pa. 631.
The statutes of amendment are to be liberally construed in favor of a trial on the merits: Fidler v. Hershey, 90 Pa. 363; Booth v. Dorsey, 202 Pa. 381; Clement v. Com., 95 Pa. 107; Herbstritt v. Lumber Co., 212 Pa. 495; Weaver v. Iselin, 161 Pa. 386; Garman v. Glass, 197 Pa. 101; Waltz v. Penna. R.R. Co., 216 Pa. 165.
The ruling as to the measure of damages was proper: Pittsburg Gauge Co. v. Valve Co., 184 Pa. 36; Reiter v. Morton, 96 Pa. 229.
Before MITCHELL, C.J., FELL, BROWN, MESTREZAT, POTTER, ELKIN and STEWART, JJ.
This action was brought by a father to recover for the death of his son eighteen years of age, who was killed while a passenger on the defendant's road. It appeared from the testimony at the trial that the deceased was survived by both parents, and a motion to amend the record so as to make the mother a party plaintiff was allowed against the objection of the defendant. The assignments of error relate to the allowance of the amendment and to the masure of damages.
Amendments have been liberally allowed in furtherance of the object of the statutes to relieve against mistakes of either fact or law and in the interest of justice to secure a trial on the merits. But the well-defined limitation of the right of amendment is that no new cause of action shall be introduced and no new parties brought in after the statute of limitations has become a bar. It was said in Cassel v. Cooke, 8 S. & R. 268, in relation to the cause of action, that "The true criterion is whether the alteration or proposed amendment is a new or different matter, another cause of controversy, or whether it is the same contract or injury and a mere permission to lay it in a manner which the plaintiff considers will best correspond with the nature of his complaint and with his proof and the merits of his case." This distinction has been observed uniformly in a long line of cases, among the more recent of which are...
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Holmes v. Pennsylvania R. Co.
... 69 A. 597220 Pa. 189 HOLMES v. PENNSYLVANIA R. CO. Supreme Court of Pennsylvania. March 2, 1908. Appeal from Court of Common Pleas, Philadelphia County. Action by William A. Holmes against the Pennsylvania Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed. At the tr......