Philadelphia v. Philadelphia Rapid Transit Company

• Decision Date: 02 January 1940
• Docket Number: 244
• Parties: Philadelphia, Appellant, v. Philadelphia Rapid Transit Company
• Court: Pennsylvania Supreme Court

10 A.2d 434

337 Pa. 1

Philadelphia, Appellant, v. Philadelphia Rapid Transit Company

No. 244

Supreme Court of Pennsylvania

January 2, 1940

Argued December 6, 1939

Appeal, No. 244, Jan. T., 1939, from judgment of C.P. No. 6 March T., 1938, No. 1480, in case of City of Philadelphia v Philadelphia Rapid Transit Company. Judgment affirmed.

Trespass. Before LAMBERTON, J., without a jury.

The opinion of the Supreme Court states the facts.

Finding and judgment for defendant. Plaintiff appealed.

Errors assigned related to the action of the court below in dismissing exceptions to the adjudication of the trial judge.

Judgment affirmed.

John J. K. Caskie, Assistant City Solicitor, with him Joseph Sharfsin, City Solicitor, for appellant.

Layton M. Schoch, with him Bernard J. O'Connell, for appellee.

Before KEPHART, C.J., SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES, JJ.

OPINION

MR. SCHAFFER, JUSTICE

Three firemen, employed by the City of Philadelphia, were injured, while riding on one of the city's fire trucks, which was struck at a street intersection by one of defendant's trolley cars, negligently operated. For the injuries received, the men brought actions of trespass against defendant and recovered verdicts aggregating $25,000, one of which was paid after the trial and the other two affirmed on appeal. In the statement of claim filed by them in the suits, the three plaintiffs claimed for loss of wages and the cost of medical care. On the trial, no evidence of loss of earnings or of the cost of medical care was introduced, and the trial judge instructed the jury that there could be no recovery for these.

After the injury to the three men, the city complied with the mandate of the Act of June 28, 1935, P.L. 477, (amended by the Act of May 14, 1937, P.L. 632, 53 PS Sec. 327), and paid them the compensation they were entitled to receive and their medical and hospital bills. Section 1 of the 1935 Act reads as follows: "That any policeman or fireman of any city (except of the second class A), borough, town or township, who is injured in the performance of his duties and by reason thereof is temporarily incapacitated from performing his duties, shall be paid by the municipality, by which he is employed, his full rate of compensation until the disability arising therefrom has ceased. All medical and hospital bills, incurred in connection with any such injury, shall be paid by such municipality."

The suit now before us was brought by the City of Philadelphia to recover from defendant the sums paid the three men and expended for their medical care, amounting in all to $6,092.27. The case was heard by Judge LAMBERTON without a jury, who denied recovery. This action was affirmed by the court in banc. The city appeals.

The court below was of opinion that the city's right to recover for any loss it may have sustained should have been asserted in the original actions brought by the three men on the theory that the city was entitled to subrogation in their recovery for the amounts it had expended, and the fact that they did not press for recovery of their wages and hospital and medical expenses, by proof of them, makes no difference so far as this suit is concerned. With this view we are in accord.

Appellant's attorney has devoted much research and learning to the presentation of his side of the controversy, going back to ancient English cases and some modern ones to sustain the principle he invokes. ^* We think the controversy is within the lines of our own decisions and not difficult of solution.

* Attorney-General v. Valle-Jones, 2 K.B. (1935), 209; Robert Marys's Case (1612), 9 Coke Reps. 201, 77 Reprint 895; Martinez v. Gerber (1841), 3 Man. & G. 88; Berringer v. Great Eastern Ry. Co. (1879), 4 C.P.D. 163; Gilbert v. Schwenk (1845), 14 M. & W. 488; Hall v. Hollander (1835), 4 B. & C. 660; Osborn v. Gillett (1873), L.R. 8 Ex. 88; Jones v. Brown (1794), 1 Peake 306; Bradford v. Webster (1920), 2 K.B. 135.

The sums here paid by the city to the firemen were not strictly speaking wages. They were in the nature of disability compensation, similar to workmen's compensation payments and payments under an accident insurance policy and should be treated in the same manner. Such payments have always been disregarded in determining the amount of damages to which an injured plaintiff is entitled: Lengle v. North Lebanon Twp., 274 Pa. 51, 117 A. 403; Littman v. Bell Telephone Co. of Pa., 315 Pa. 370, 172 A. 687. There was nothing to prevent the recovery of these payments in the original suits. The same is true of the medical expenses and hospital bills. Nothing said in Quigley v. Penna. R.R. Co., 210 Pa. 162, 59 A. 958; Pensak v. Peerless Oil Co., 311 Pa. 207, 166 A. 792, and Rundle v. Electric Ry. Co., 33 Pa.Super. 233, denied to the three plaintiffs the right to recover all these disbursements from defendant.

The...