Siegel v. Struble Brothers, Inc.

• Decision Date: 30 September 1942
• Docket Number: 195-1942
• Citation: 28 A.2d 352,150 Pa.Super. 343
• Parties: Siegel v. Struble Brothers, Inc., Appellant
• Court: Pennsylvania Superior Court

28 A.2d 352

150 Pa.Super. 343

Siegel v. Struble Brothers, Inc., Appellant

No. 195-1942

Superior Court of Pennsylvania

September 30, 1942

Argued April 29, 1942.

Appeal from judgment of C. P. Allegheny Co., Jan. T., 1940, No. 149 in case of Anny Siegel v. Struble Bros. Inc.

Assumpsit. Before Waychoff, P. J., specially presiding.

Verdict and judgment for plaintiff, defendant appealed.

Judgment affirmed.

Sidney J. Watts, of Baker & Watts, for appellant.

Morris J. Pollack, with him Samuel Silverman, for appellee.

Before Keller, P. J., Cunningham, Baldrige, Rhodes, Hirt and Kenworthey, JJ.

OPINION

Hirt, J.

Plaintiff bought a heating system, consisting of a furnace, a humidifier and an air conditioning unit, from the defendant. By the terms of the contract defendant agreed to supply the equipment and to install it in plaintiff's house. There were no defects in design or materials and the various units of the system complied with standard engineering practices. The system would have operated in harmony if it had been properly installed. The proofs indicate that defendant was negligent in this respect. The humidifier pan, intended to be level, was set up in a tilted position with the water level at the lower end below the overflow pipe. The result was a constant dripping of water to the hot interior of the furnace; with the pan in this position the automatic control of the water supply could not operate. As a consequence, excess steam and moisture were discharged into the house, which caused a buckling of the wood floors, cracking of the plaster and breaking of the bond, loosening of the wallpaper, and warping of the woodwork. The defective installation was concealed by the outer shell of the furnace and for that reason was not observed by plaintiff. When she noted that the unit was not operating properly she notified defendant but nothing was done.

The agreement with defendant implied proper installation and the damages to plaintiff's house were the proximate consequence of defendant's breach of its contract. Plaintiff was seriously damaged. Several building contractors testified as to the cost of restoring the house to its former condition. Their estimates ranged from $ 975 to $ 1,225. The jury found for plaintiff in the sum of $ 700.

This action was in assumpsit; two questions are raised in this appeal: (1) Whether plaintiff is limited to nominal damages because of the form of her action and (2) whether defendant is entitled to a new trial on the ground, alleged, that the verdict was a compromise.

The fact that the action was in assumpsit, in itself, does not bar this plaintiff from recovering substantial damages even if the action should have been in trespass. Much of the distinction between forms of action has lost its former significance; the court looks to substance; Lindsley v. First Nat. Bank, 325 Pa. 393, 190 A. 876; this has long been the attitude of the courts. Livingston v. Cox, 6 Pa. 360. Objection to the form of the action will be considered if the complaint is timely. Welker v. Metcalf, 209 Pa. 373, 58 A. 687. But the right to take advantage of improper form may be waived by a defendant, where the action is in trespass and assumpsit is the proper remedy (Dietrich v. Davies, 274 Pa. 213, 117 A. 915; Welker v. Metcalf, supra) or where the action is in assumpsit and the remedy in trespass. Nock v. Coco Cola Bot. Wks. Pgh., 102 Pa.Super. 515, 156 A. 537. It is too late to raise the question after trial on the merits ( Williams v. Hay, 120 Pa. 485, 14 A. 379); "unless it is shown to have injuriously affected the trial .... the proper amendment will be considered to have been made." Erie City Iron Works v. Barber, 118 Pa. 6, 12 A. 411. In the Nock case we said: "If it be assumed that the action was improperly begun .... we will not reverse on such formal matter after a trial .... without objection to the form of the action."

The action here, however, was properly brought in assumpsit though sounding in tort. The gist of the action was defendant's negligence and though it might have been brought in trespass, the real issue was whether defendant was guilty of neglect in the performance of its contract. Cowan v. Nagel, 89 Pa.Super. 122. Since the damages sustained by plaintiff were foreseeable by defendant as the necessary, ordinary and natural consequences of its negligence, plaintiff was entitled to compensatory damages measured by the rule applicable to assumpsit upon breach of contract. The rule, continuing the principle of the leading English case, Hadley v. Baxendale, 9 Exch 341, 5 Eng. Rul. Cases 502, (1854), is thus stated and discussed in Dairymen's Co-operative Asso. v. McCreary, 132 Pa.Super. 524, 1 A.2d 508: "'The damages ordinarily recoverable are those necessarily following the breach, which the party guilty of the breach must be presumed to know would be the probable consequence of his failure: 2 Greenl. Ev. § 253. This rule is well expressed by Strong, J., in Adams Express Co. v. Egbert, 12 Casey 364. They must be a proximate consequence of the breach, not merely remote or possible. There is no measure for losses of the latter kind': Pittsburg Coal Co. v. Foster et al.,...