Spees v. Boggs

• Decision Date: 05 January 1903
• Docket Number: 113
• Citation: 204 Pa. 504,54 A. 346
• Parties: Spees, Appellant, v. Boggs
• Court: Pennsylvania Supreme Court

54 A. 346

204 Pa. 504

Spees, Appellant, v. Boggs

No. 113

Supreme Court of Pennsylvania

January 5, 1903

Argued October 31, 1902

Appeal, No. 113, Oct. T., 1902, by plaintiff, from judgment of C.P. No. 2, Allegheny County, July T., 1901, No. 102 sustaining demurrer to statement in case of Clara Spees v. R H. Boggs and Henry Buhl, trading as Boggs & Buhl. Affirmed.

Trespass to recover damages for personal injuries. Before SHAFER, J.

From the record it appeared that on June 1, 1897, plaintiff was injured in an elevator in defendant's store. She brought suit for damages against the defendants in the court of common pleas on May 28, 1898, and recovered a verdict. The defendants on April 30, 1900, appealed to the Supreme Court. On January 7, 1901, the Supreme Court reversed the judgment of the court below without granting a venire de novo.

Subsequently on April 15, 1901, the plaintiff began this suit against the defendants for damages for the injuries sustained by her on June 1, 1897, to which the defendants interposed a demurrer, specifying among other reasons that the suit had been brought more than two years after the time when the cause of action arose, and that therefore her cause of action was barred by the operation of the 2d section of the Act of June 24, 1895, P.L. 236. The plaintiff relied upon the 2d section of the Act of March 27, 1713, 1 Sm. L. 76, having laid the grounds by proper averments in the statement of claim.

The court sustained the demurrer.

Error assigned was the judgment of the court.

Judgment affirmed.

S. Schoyer, Jr., and S. B. Schoyer, with them John P. Hunter and William Kaufman, for appellant. -- The provision in the act of 1713, limiting the period of one year within which a new action must be brought after the reversal of a judgment without a new venire, is not repealed by the statute of June 24, 1895: Downing v. Lindsay, 2 Pa. 382.

We contend that the act of 1895 applies only to original actions, and applying to original actions embraces all persons who had the right to bring such original action.

There is no repealing clause in the act of June, 24, 1895, and it is a familiar principle of law that implied repeals of statutes are not favored, and that if two statutes can stand together, the latter does not abrogate the former: Erie v. Bootz, 72 Pa. 196; Com. v. Fry, 183 Pa. 32.

The 2d section of the act of 1895 and the 2d section of the act of 1713 are in pari materia and can be construed together; and in the act of 1895, applying as it does only to original actions, suits must be brought within the period of two years.

The judgment of reversal does not operate as a bar to another suit for the same cause for action, if such suit or action be brought within the statutory period of one year: Sterrett v. Bull, 1 Binn. 238; Fries v. Penna. R.R. Co., 98 Pa. 142; Mercer v. Watson, 1 Watts, 330; Smith v. Sharp, 5 Watts, 292.

Edwin S. Craig, for appellees, cited: Rodebaugh v. Phila. Traction Co., 190 Pa. 358; Peterson v. Delaware River Ferry Co., 190 Pa. 364; Wiest v. Electric Traction Co., 200 Pa. 148.

Before MITCHELL, DEAN, FELL, BROWN, MESTREZAT and POTTER, JJ.

OPINION

MR. JUSTICE MITCHELL:

At common law a judgment arrested or reversed was not such an adjudication as would bar a second action. It was so assumed by counsel and court in Sterrett v. Bull, 1 Binn. 238, which appears to be the first precedent in this court for granting a venire de novo. In Mercer v. Watson, 1 Watts, 330 (342), it was held, after a learned discussion of the subject by KENNEDY, J., that a judgment reversed for an incorrect ruling on evidence by the court below could not avail for the other party as one of the two judgments in ejectment, which under the act of 1807 would bar further action. And finally in Fries v. Penna. R.R. Co., 98 Pa. 142, it was explicitly decided that a reversal of judgment without a new venire was not a bar to a second action for the same cause.

On these settled authorities it is clear that the demurrer in the present case could not be sustained on the ground that the cause of action was res adjudicata. We have therefore to consider the question of the statute of limitations.

The Act of March 27, 1713, 1 Sm. L. 76, in section 1, established a period of general limitation in personal actions. Section 2 then provided that "if in any of the said actions or suits judgment be given for the plaintiff, and the same be reversed by error, or a verdict passed for the plaintiff, and upon matter alleged in arrest of judgment, judgment be given against the plaintiff, that he take nothing by his plaint, writ or bill, then and in every such case the party plaintiff, his heirs, executors or administrators, as the case may require, may commence a new action or suit from time to time within a year after such judgment reversed or given against the plaintiff as aforesaid, and not after."

This section is also a general statute of limitations as to all actions coming within the class described, and may either enlarge or curtail the period allowed in section 1. In Downing v. Lindsay, 2 Pa. 382, it was held that a second action brought within a year after a reversal of a prior one for the same cause, was within the protection of the 2d section though it was more than the six years allowed by the 1st section after the cause arose. And the reasoning of the case makes it clear that if the second action had not been brought till more than a year after the reversal of the first, it would...