Waring v. Pennsylvania Railroad Co.

• Court: Pennsylvania Supreme Court
• Writing for the Court: MR. JUSTICE GREEN:
• Citation: Waring v. Pennsylvania Railroad Co., 35 A. 106, 176 Pa. 172 (Pa. 1896)
• Decision Date: 15 July 1896
• Docket Number: 158
• Parties: Richard S. Waring and Orville T. Waring, Late Partners as Waring Brothers & Co., Appellants, v. The Pennsylvania Railroad Company

35 A. 106

176 Pa. 172

Richard S. Waring and Orville T. Waring, Late Partners as Waring Brothers & Co., Appellants, v. The Pennsylvania Railroad Company

No. 158

Supreme Court of Pennsylvania

July 15, 1896

Argued October 31, 1896

Appeal, No. 158, Oct. T., 1895, by plaintiffs, from judgment of C.P. No. 1, Allegheny County, December Term, 1879, No 710, of nonsuit. Affirmed.

Action of trespass on the case to recover damages for alleged unjust discrimination in freight rates in transportation of petroleum oil, claiming damages of $1,500,000. Before STOWE P.J.

The facts appear by the opinion of the Supreme Court.

R. S. Waring, one of the plaintiffs, filed affidavit setting forth: that the suit in this case was brought at his instance, and he was and is the principal party in interest, and that shortly after bringing this suit he left his county and state upon business matters requiring his attention in England, where he remained for about one year, and that he had business engagements keeping him in England and in continental Europe a large part of his time until October, 1893; that from the spring of 1887 until October, 1893, he was engaged in England or on the continent continuously, making but few casual visits to this country; that in fact he never abandoned this suit, and, on the contrary, always intended to have the same tried; that he was not aware that the pleadings were not filed, and the case duly at issue, until a short time before the declaration was filed in this case. And he says that he never directed any suspension of proceedings in this case, and has at all times desired to have the same tried, and also being aware of the fact that the defendants were in possession of nearly all of the most important evidence in the case, and that this evidence could be shown by their books and documents, the production of which this deponent shall demand of the defendant for the trial of this cause, and that in fact there is no evidence required in this cause on behalf of the defendant which the defendant has not in its possession, and can as well produce now as at any other former time, and this the defendant is well aware, as the said defendant has had suits, and been called upon to furnish evidence in relation to the same kind of claims of overcharges and extortion in the interest of the said railroad company, and of the parties which it has favored and particularly the Standard Oil Company, in whose favor, with that of a few others, the defendant has been a party to destroying a great business carried on by the plaintiffs, as well as the business of every other man like situated in Pittsburg and the oil regions.

The court entered judgment of nonsuit.

Errors assigned were, (1) entering judgment of nonsuit; (2) making absolute rule of defendant to show cause why the court should not quash the declaration and enter a judgment of nonsuit.

Judgment affirmed.

M. A. Woodward, with him Shiras & Dickey and J. W. Lee, for appellants. -- The statute of Charles II. is not applicable to this case: Warren v. Steer, 118 Pa. 533; Johnson v. Hessel, 134 Pa. 315.

The decision of this court in Malone v. Haman, 5 W.N.C. 447, is conclusive of this case.

Delays in not moving a cause to trial are chargeable alike to both parties and neither can impute laches to the other: Wilhelm's Appeal, 79 Pa. 120; Ward v. Patterson, 46 Pa. 375; Perdue v. Taylor, 146 Pa. 163; Morford v. Cook, 24 Pa. 92.

In thirty years practice at the Pittsburg bar, in no case has any attorney had his neglect to file pleadings taken advantage of, and reasonable indulgence has always been granted when asked for; nor can any cause be found where such action as here has been taken when no injury or inconvenience could have been caused to the defendant by reason of the delay.

William Scott, with him Geo. B. Gordon, for appellee. -- The courts of Pennsylvania have always recognized the existence of power to enter a judgment of non pros or turn a plaintiff out of court even after issue joined in consequence of long delay of prosecution of a cause: Huffman v. Stiger, 1 Pittsburg, 185; Biddle v. Bank, 109 Pa. 349; Foulk v. Brown, 2 W. 209; Hemphill v. McClimans, 24 Pa. 367; Morford v. Cook, 24 Pa. 92; Van Loon v. Smith, 103 Pa. 238; McClurg v. Fryer, 15 Pa. 293; Curcier's Est., 28 Pa. 261. An amendment will not be allowed to introduce a new cause of action so old as to be barred by the statute of limitations: Steffy v. Carpenter, 37 Pa. 41; Trego v. Lewis, 58 Pa. 463; Royse v. May, 93 Pa. 454; Fairchild v. Dunbar, 128 Pa. 485.

The courts below are the proper judges of the extent and application of their own rules: Snyder v. Bauchman, 8 S. & R. 336; Umberger v. Zearing, 8 S. & R. 163; Frank v. Colhoun, 59 Pa. 381; Gannon v. Fritz, 79 Pa. 303; Wickersham v. Russell, 51 Pa. 71; Higgins v. Latimer, 165 Pa. 617.

Before STERRETT, C.J., GREEN, WILLIAMS, McCOLLUM, MITCHELL, DEAN and FELL, JJ.

OPINION

MR. JUSTICE GREEN:

In this case the writ of summons was issued on November 29, 1879, and service accepted December 1, 1879. No other step was taken until on October 4, 1894, when the plaintiffs filed a statement and affidavit of claim. Thereupon the defendant obtained a rule to show cause why the statement and affidavit should not be stricken off, and a judgment of non pros entered, on account of the laches of the plaintiffs in proceeding with their case. No narr or statement of claim was ever filed until October, 1894, almost fifteen years after the writ was issued. The cause of action averred in the plaintiffs' statement originated in November, 1873, about twenty-one years prior to the filing of the statement. During all of this long period of inaction there was nothing appearing on the record to indicate what claim was made against the defendant, or that there was any cause of action whatever. In the meantime Mr. Hampton, who had accepted service of the writ in writing in the name of his firm, had died. Mr. Dalzell, his partner, had left the practice a number of years before, and the counsel who now represent the defendant are not the counsel who accepted service of the writ nearly fifteen years before. Having carefully read and considered the ex parte affidavit made by Richard S. Waring, one of the plaintiffs, as explanatory of the delay in the proceedings, we are bound to say that there is nothing contained therein which in the least degree justifies, or excuses, the remarkable laches of the plaintiffs in pursuing their cause. They at all times retained full control over the cause and could at any time have proceeded with it in due course. Neither engagements in Europe, nor absences elsewhere, constitute any excuse for not filing a narr or statement. The affiant says he never abandoned the suit and always intended to have it tried, and never directed a suspension of proceedings. Such averments are of the most trivial and useless character. They are utterly at war with the actual facts of the situation, and as against those facts they avail nothing. If he did not direct a suspension of proceedings he certainly did suspend them, and practically abandon them, for an unprecedented period without the slightest reason or necessity.

We come then to the consideration of the mere question of the power of the court below to grant the nonsuit. In view of the undoubted facts appearing of record, it seems almost absurd to enter upon the discussion of such a question. When it is considered that a delay of only six years in the bringing of such a suit gives rise to an absolute bar to its maintenance, at the mere will of the defendant, it seems useless to consider whether the court in the exercise of its discretionary power, may not grant a nonsuit for a mere wanton delay of more than fourteen years in the prosecution of the suit. When it is further considered, that, by the rule of court now in force in Allegheny county, a delay of only three months in filing the declaration authorizes the defendant, upon the mere praecipe of his attorney, to have a judgment of non pros entered by the prothonotary, without any action of the court, or notice to the plaintiff, it is an extraordinary proposition to advance, that the court itself upon unanswerable cause shown and after a full notice to the plaintiff, may not order a nonsuit for a delay of fourteen years. If the court of common pleas may adopt and enforce a rule that the defendant may have a compulsory non pros at his own instance, after, and because of, a delay of three months in filing a narr, how can it be denied that the court itself may grant a nonsuit upon motion and a hearing, for the same cause when the delay has been protracted for fourteen years. If it has not such power it certainly has no power to make such a rule. But the power to make such a rule is not questioned and cannot be doubted. It must be remembered that in this case the power of the court below has been exercised and the nonsuit granted. If this authority is within the discretion of the court only, that discretion has been exerted and the end of the discussion has been reached. It is not pretended that there has been an abuse of discretion in granting the nonsuit. On the contrary the plaintiffs' dereliction has been so excessively flagrant that a refusal of the nonsuit might well have been regarded as an abuse of discretion.

If we turn to the authorities they are simply overwhelming. They are abundantly collected in the very able and exhaustive opinion of the learned court below, and need not be here...