Ierardi v. Farmers' Trust Co. of Newark
| Decision Date | 21 November 1928 |
| Citation | 34 Del. 246,151 A. 822 |
| Court | Delaware Superior Court |
| Parties | JOSEPH E. IERARDI v. FARMERS TRUST COMPANY OF NEWARK, administrator of Alfred C. Stiltz, deceased |
[Copyrighted Material Omitted]
Superior Court for New Castle County, No. 10, January Term, 1928.
Action on the case for personal injuries. The declaration, in substance, alleged that the plaintiff while cleaning a trolley switch at a street intersection in the City of Philadelphia was struck by a motorbus belonging to Alfred C Stiltz and driven by one of his employees and agents, and injured.
It further alleged that his injuries were caused by the negligence of the agent of Stiltz.
The third count, in substance, alleged that the defendant operated a motorbus without complying with a statute of the State of Pennsylvania, which required motor vehicles to be operated as close to the right side of a highway as possible, and that, as a result thereof, the plaintiff was injured.
The fourth count also, in substance, alleged that the defendant operated his motorbus without complying with another statute of the State of Pennsylvania, which provided that every operator of a motor vehicle should sound some device giving reasonable warning of its approach whenever necessary to insure the safety of other users of the highway, and that the injuries to the plaintiff were caused thereby.
The fifth count also, in substance, alleged that the defendant operated his motorbus without its being equipped with adequate and, at least, two systems of brakes, in violation of another statute of the State of Pennsylvania, and that the plaintiff's injuries were caused thereby.
The sixth count also, in substance, alleged that the defendant operated his motorbus faster than one mile in four minutes, in violation of another statute of the State of Pennsylvania, and that the plaintiff's injuries were caused thereby.
The defendant demurred generally to the third, fourth, fifth, and sixth counts of the declaration.
1. Defendant claims that it does not appear from the third count of the declaration that there was any causal connection between the Pennsylvania statute and the injuries suffered by the plaintiff, the argument being that the purpose of the statute was only to regulate traffic, and not to protect persons working in the street. In the absence of a clear intent to that effect, we cannot say that such was the only purpose of the statute. So far as appears, it was intended to protect any one lawfully in the street, whether riding in some vehicle, proceeding on foot, or at work in such street. A man working in the bed of a congested street could not be expected to see every approaching motor vehicle in time to avoid being hit by it, and, therefore, had the right to assume that such vehicles would obey the statute and keep as near to the right side of the street in the direction in which they were proceeding as was possible. This count, therefore, sets out a cause of action. Brown v. Schendelman, 4 W. W. Harr. (34 Del.) 50, 143 A. 42, cited by the demurrant, involved a very different statute and has no application to this case.
2. The mere general allegation in the fourth count of the declaration that the accident was caused by the failure of the operator to give warning of his approach was not sufficient. It is not alleged that he was injured at a street intersection, and it should, therefore, appear from this count of the declaration that conditions were such, at the time, that the defendant in the exercise of reasonable care was required to give warning of his approach. Hughes v. Connable, 5 Penn. 523, 64 A. 72, and Silvia v. Scotten, 1 W. W. Harr. (31 Del.) 290, 114 A. 206, 207, seem to be in point. In the latter case the court said:
"There was no duty upon the driver of an automobile to give warning unless the exigencies of the occasion demanded it, and he saw that there was danger of collision; that the counts alleged no such facts as required notice, and were, therefore, insufficient."
3. The question raised by the demurrer to the fifth count of the declaration is analogous to that raised by the demurrer to the fourth count. It does not appear that the injuries to the plaintiff were caused by defendant's motorbus not being equipped with the brakes required by the Pennsylvania statute. It is true that this is alleged, in general terms, but none of the existing conditions appear, and the bare general allegation above referred to is not sufficient.
4. The same question is raised by the demurrer to the sixth count, as none of the conditions existing at the time and place of the accident were alleged, and that count is, therefore, insufficient.
The demurrer to the third count of the declaration is, therefore, overruled, but the demurrer to the fourth, fifth, and sixth counts is sustained.
This action was originally brought against Alfred C. Stiltz during his lifetime, but at the March Term, 1929, a petition was presented to the court (RICE and HARRINGTON being the judges then sitting) by the Farmers Trust Company of Newark, alleging his death and its appointment as his administrator.
Pursuant to the prayer of that petition and without the issuance of a writ of scire facias by the plaintiff, that company, as administrator of the said Alfred C. Stiltz, was substituted for him as a party defendant.
After the decision on the demurrer, hereinabove referred to, an amended declaration containing six counts was filed by the plaintiff. Shortly before the March Term, 1929, a plea in abatement was filed by the defendant to the third, fourth, fifth and sixth counts of the amended declaration.
This plea, in substance, alleged that at the time the plaintiff was injured he was an employee of the Philadelphia Rapid Transit Company and was then acting in the regular course of his employment; that the provisions of the Pennsylvania Workmen's Compensation Act had been duly accepted by both employer and employee and that Ierardi had been paid compensation for his injuries by that company; that the Pennsylvania Compensation Act, among other things, provided that upon payment of compensation to an employee for injuries done by a negligent third person, the employer should "be subrogated to the right of the employee * * * against such third person, but only to the extent of the compensation payable under this article by the employer" (section 319, Act June 2, 1915, P. L. 736 [77 P. S. § 671]), and that the Rapid Transit Company had a legal interest in the right of action of the plaintiff and was, therefore, a necessary joint party to this action.
The plaintiff demurred to this plea and the argument on the demurrer was before RICE and HARRINGTON, J. J., who constituted the court at the March Term, 1929.
The demurrer to the plea in question is sustained.
Howard Duane (of Marvel and Morford) for plaintiff.
William Prickett for defendant.
This is an action on the case for personal injuries to the plaintiff alleged to have been caused by the negligent acts of an employee and agent of Stiltz, whose administrator is the defendant.
It appears from the plea in abatement that the plaintiff was an employee of the Philadelphia Rapid Transit Company; that the injuries alleged to have been received by him were received while he was acting in the performance of his duties as an employee of that company, and that compensation for such injuries was paid to him by his employer.
The question to be determined is whether, having paid compensation to the plaintiff, its injured employee, the Rapid Transit Company is a joint legal owner of his right of action against Stiltz, the alleged negligent third person, and is, therefore, a necessary joint party plaintiff in a suit against him. If it is a necessary party plaintiff, that its nonjoinder can be raised by a plea in abatement is not disputed. Woolley's Delaware Practice, § 468; 1 Chitty on Pl., star page 446; Gould on Pl., § 103, p. 253; Ellis, Admr., v. Culver, 1 Harr. 76, note.
The interest of the Rapid Transit Company in this action depends upon the provisions of section 319 of the Pennsylvania Workmen's Compensation Act (77 P. S. § 671). This section provides:
Under this statute, the Rapid Transit Company has certain rights in this cause of action, but the extent of such rights, and whether they are legal or equitable, depends upon the meaning of the word "subrogated."
Subrogation is an equitable remedy borrowed from the civil law. In re Shimp's Estate, 197 Pa. 128, 46 A. 1037; Shinn v. Budd, 14 N.J.Eq. 234; Young v. Vough, 23 N.J.Eq. 325; National Surety Co. v. State Savings Bank (C. C. A.), 156 F. 21, 14 L. R. A. (N. S.) 155, 13 Ann. Cas. 421.
Generally speaking "it is the substitution of one person in the place of another, whether, as creditor or as the possessor of any other rightful claim." Sheldon on Subrogation ps. 1, 2; Townsend v. Cleveland Fire Proofing Co., 18 Ind. App. 568, 47 N.E. 707; Leavitt v. Canadian Pac. R. R. Co., 90 Me. 153, 37 A. 886, 38 L. R. A. 152; Jackson Co. v. Boylston Mut. Ins. Co., 139 ...
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Catalfano v. Higgins
...be no doubt that at common law an insurer's subrogation suit must be brought in the name of the insured. Ierardi v. Farmers Trust Co. of Newark, 4 W.W.Harr. 246, 34 Del. 246, 151 A. 822; DeSeta v. Siple, C.A. 903, 1960 (unreported). And see the annotation above cited. The theory of this pro......
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