Spiegel v. Magill

• Decision Date: 20 August 1930
• Docket Number: 379
• Citation: 15 Pa. D. & C. 566
• Parties: Spiegel, Guardian, v. Magill
• Court: Pennsylvania Commonwealth Court

15 Pa. D. & C. 566

Spiegel, Guardian, v. Magill

No. 379

Common Pleas Court of Westmoreland County, Pennsylvania

August 20, 1930

Feb T., 1929.

Motion for judgment of non pros.

John C. Blackburn and H. H. Dinsmore, for plaintiff.

Scott Fink and Smith, Best & Horn for defendant.

OPINION

WHITTEN, J.

December 3, 1928, the above action in trespass was instituted to recover damages from the defendant in the sum of$ 20,000 by reason of personal injuries suffered by Rose Spiegel August 30, 1928.

It appears from the record at No. 845, November Term, 1928, that upon petition filed October 15, 1928, the court, after hearing, to wit, November 21, 1928, entered a decree appointing J. L. Spiegel as guardian of Rose Spiegel, a weak-minded person, by virtue of the Act of May 28, 1907, P. L. 292.

In the plaintiff's statement of claim, filed December 3, 1928, it is averred that on August 30, 1928, the plaintiff was of sound mind and in good health; that on the date aforesaid the said Rose Spiegel, while riding as a passenger in a taxicab owned and operated by the defendant, was seriously and permanently injured in body and mind by reason of the negligent operation of the said taxicab by the defendant's employee; and that by reason of such injuries the plaintiff was obliged to expend large sums of money for medical attention, hospital care and nursing in endeavoring to cure and alleviate said injuries.

December 6, 1928, the defendant caused an appearance to be entered for him by his counsel.

February 13, 1929 -- no affidavit of defense having been filed by the defendant -- plaintiff's attorney filed a praecipe directing the prothonotary to place the case upon the issue docket. Later the court placed the said case upon the trial list for May Term, 1929.

May 28, 1929, on motion by defendant, the court continued the case by reason of the absence of defendant's counsel.

The case was again placed upon the trial list of November Term, 1929.

November 14, 1929, plaintiff's counsel filed with the prothonotary a praecipe as follows: " And now, to wit, November 6, 1929, the plaintiff suggests the death of the said Rose Spiegel, alias dictus Roselle Spiegel, and substitutes on the record as plaintiff the personal representative of her estate John C. Blackburn, administrator c. t. a. H. H. Dinsmore."

November 14, 1929, the plaintiff filed an amendment to the statement of claim, averring, inter alia, the death of Rose Spiegel on September 3, 1929.

December 6, 1929, the defendant presented his petition to the court, alleging (a) the institution of this suit on December 3, 1928; (b) the death of Rose Spiegel September 3, 1929; (c) that the filing of the praecipe November 6, 1929, and the filing of the amended statement on the same day was without authority and without notice to the defendant; (d) that Rose Spiegel had brought no suit for damages in her lifetime and that there was no authority for the addition of her personal representative as use plaintiff in the said suit and praying that a rule be granted upon John C. Blackburn, administrator, and on J. L. Spiegel, guardian of Rose Spiegel, to show cause (1) why the suggestion of the death of Rose Spiegel and the addition of John C. Blackburn, her administrator, as use plaintiff, should not be stricken off, and (2) why a judgment of non pros. should not be entered for want of a proper plaintiff to prosecute such action.

December 6, 1929, the court granted the rule prayed for.

December 9, 1929, John C. Blackburn, administrator of Rose Spiegel, made answer to the said rule, inter alia, that: (1) Leave of court was obtained to file the amendment to the plaintiff's statement of claim -- of which the defendant had due notice; (2) Rose Spiegel in her lifetime, by her guardian, brought the original action for compensation for personal injuries to her occasioned by the negligent acts of the defendant and after her death John C. Blackburn, her administrator, was substituted on the record in order to proceed with the trial of the case.

The defendant alleges, in support of his motion for judgment of non pros., that Rose Spiegel did not in her lifetime file or cause to be filed any suit or action against the defendant.

In other words, defendant's learned counsel contend that an inspection of the record in this case discloses that the suit in the instant case was only an action by J. L. Spiegel, guardian of Rose Spiegel, a weak-minded person, to recoup moneys expended by the guardian on behalf of his ward; that Rose Spiegel was not joined as a party plaintiff; and that there is no averment in the declaration to support a claim for damages on behalf of said Rose Spiegel in her lifetime.

Turning to the record, it appears that the plaintiff is " J. L. Spiegel, guardian of Rose Spiegel, alias dictus Rosella Spiegel, a weak-minded person."

The cause of action alleged is personal injury to Rose Spiegel produced by the negligent acts of the defendant, which negligent acts occurred before the appointment of J. L. Spiegel as guardian of Rose Spiegel.

It is averred in plaintiff's declaration, inter alia, that:

" By reason whereof, the said Rose Spiegel, alias dictus Rosella Spiegel, has sustained serious and permanent injuries, to wit, her head, face and arms were cut, her head, face, back and hips were bruised, and she sustained such a severe shock or blow on her head that her brain was permanently injured and her mind is completely destroyed, and she was permanently incapacitated from following her usual occupation, and she has endured great pain and suffering, and will continue to endure great pain and suffering.

" The plaintiff has been obliged to spend large sums of money for medicines and medical attention, hospital care and nursing, in endeavoring to cure and alleviate the said injuries.

" Plaintiff claims damages in the sum of $ 20,000."

In the amended statement of claim filed November 14, 1929, there are the following additional averments, viz., (a) that by reason of her injuries, Rose Spiegel " continued to endure great pain and suffering until the 3rd day of September, 1929, when, as a result of her injuries aforesaid, she died; " and (b) that the plaintiff has been obliged to spend large sums of money for funeral expenses after her death.

Thus, it appears that the basis of this suit is a physical injury to Rose Spiegel, caused by the negligence of the defendant, and that the injury occurred August 30, 1928; that after the occurrence of such injury (October 15, 1928), a petition was presented to the court for the appointment of a guardian for Rose Spiegel under the provisions of the Act of 1907, that on November 21, 1928, J. L. Spiegel was appointed as her guardian, and that on December 3, 1928, this action was instituted as aforesaid.

Of course, Rose Spiegel could not institute an action at law after the appointment of J. L. Spiegel as her guardian.

The Act of May 28, 1907, P. L. 292, section six, provides that " The guardian, so appointed, shall have precisely the same powers, and be subject to the same duties, as a committee on lunacy in the State of Pennsylvania. The court appointing such guardian shall have full power over the same... "

Section twenty of the Act of June 13, 1836, P. L. 589, relating to lunatics and habitual drunkards, provides that the committee of the estate of every person found to be a lunatic, etc., " shall have the management of the real and personal estate of such person, and shall from time to time, apply so much of the income thereof as shall be necessary to the payment of his just debts and engagements, and the support and maintenance of such person, and of his family, and for the education of his minor children."

In Shaffer v. List, Committee of Shaffer, 114 Pa. 486, it was held that an action of ejectment could not be maintained by the committee of a lunatic to eject his wife and his children from the home provided by him for them while sane. In that case, the title in fee to the realty in question was in the lunatic. However, in the above case, the Supreme Court (page 489) said: " The committee is the mere bailiff or servant of the court, and as such is subject to its direction in everything that pertains to the management of the lunatic's estate, and the maintenance of him and his family. He may undoubtedly maintain ejectment against a stranger to secure possession of the lunatic's real estate; but, we are not aware that ejectment, against the lunatic's wife, for the purpose of ejecting her and his children from the home he provided for them, has ever been sanctioned...."

Defendant's learned counsel object to the form of the action and pleadings and contend-as we understand their contention -- that the caption of the case should be -- " Bose Spiegel, alias dictus Resells Spiegel, a weak-minded person, by her guardian, J. L. Spiegel, v. David R. Magill, trading and doing business as Magill's Motor Bus & Taxi Company."

However, this objection was not raised by the defendant until more than one year after the plaintiff's suit was brought. In the meantime, the case had twice been placed on the trial list by order of the court, and was once continued on motion of the defendant by reason of the absence of one of the defendant's counsel. The defendant now contends that it is now too late for the plaintiff to amend the record or the pleadings. The question of the plaintiff's right to amend will be discussed later.

The record in this case, including the plaintiff's statement of claim, clearly discloses that: (a) At the time the action was commenced, Rose Spiegel was a weak-minded person within the scope of the Act of 1907, P. L. 292, and the court had appointed J. L. Spiegel as her guardian; (b) the basis of the plaintiff's...