Wiest v. City of Philadelphia
| Decision Date | 17 July 1901 |
| Docket Number | 54 |
| Citation | 49 A. 891,200 Pa. 148 |
| Parties | Wiest v. Electric Traction Company, Appellant |
| Court | Pennsylvania Supreme Court |
Argued April 4, 1901
Appeal, No. 54, Jan. T., 1901, by defendant, from judgment of C.P. No. 4, Phila. Co., March T., 1895, No. 602, on verdict for plaintiff in case of Anna Maria Wiest v. City of Philadelphia, the Electric Traction Company, Appellant, and John W. Hoffman and Ernest Law, trading as John W. Hoffman & Company. Reversed.
Trespass for death of plaintiff's husband. Before AUDENRIED, J.
At the trial it appeared that on June 24, 1894, plaintiff's husband fell over a girder rail lying in a gutter, and received injuries from which he subsequently died. The accident occurred in the evening. J. W. Hoffman & Company were contractors engaged in laying tracks for the Electric Traction Company. The court instructed the jury that there could be no verdict against J. W. Hoffman & Company, and submitted to the jury the question of the negligence of the Electric Traction Company.
Verdict and judgment against the Electric Traction Company for $5,000 and in favor of the city of Philadelphia and J. W. Hoffman & Company. The Electric Traction Company appealed.
Errors assigned were (1) the portion of the charge as to damages, quoted in the opinion of the Supreme Court; (2, 3) in submitting to the jury the question of negligence of the Electric Traction Company; (4) in giving binding instructions in favor of J W. Hoffman & Company.
The judgment is reversed, and a venire facias de novo awarded.
Thomas Leaming, with him Charles Biddle, for appellants. -- Damages for the loss of a parent are not to be determined by the possibility of the parent accumulating an estate for the child to inherit.
The Electric Traction Company had made a written contract with J. W. Hoffman & Company to construct in the street an electric street railway line. That such an independent contract may relieve a railway company of liability for accident occasioned by the contractor's negligence is not a matter of doubt under the decisions of this court: Painter v. Pittsburg, 46 Pa. 213; Wray v. Evans, 80 Pa. 102; Erie v. Caulkins, 85 Pa. 247; Harrison v. Collins, 86 Pa. 153; Smith v. Simmons, 103 Pa. 32; Chartiers Valley Gas Co. v. Lynch, 118 Pa. 362; Thomas v. Altoona, etc., Electric Ry. Co., 191 Pa. 361.
Thomas R. Elcock, with him J. Peter Klinges, for appellee. -- The jury were to determine the pecuniary injury sustained by the surviving relatives: Huntingdon, etc., R.R. Co. v. Decker, 84 Pa. 419; Mansfield Coal & Coke Co. v. McEnery, 91 Pa. 185; Lehigh Iron Co. v. Rupp, 100 Pa. 98; Schnatz v. Phila. & Reading R.R. Co., 160 Pa. 602.
The employees of the traction company placed the rail in the position where it occasioned the accident.
The cases, from Painter v. Pittsburg, 46 Pa. 213, to Thomas v. Altoona, etc., Electric Ry Co., 191 Pa. 361, have no application to this case, because in those cases the injury arose from the direct action of the contractor, and the principal was accordingly not held.
When an action is brought against more than one for a wrong done, in order to recover against all a combination or joint act of all must be proved. If it turn out on the trial that only one was concerned, the plaintiff may recover, as if such one had been sued alone: Laverty v. Vanarsdale, 65 Pa. 507; Huddleston v. Borough of West Belleview, 111 Pa. 110; Borough of Brookville v. Arthurs, 130 Pa. 501; Gates v. Penna. R.R. Co., 150 Pa. 50.
Before McCOLLUM, C.J., FELL, BROWN, MESTREZAT and POTTER, JJ.
In that portion of the charge which is assigned as error in the first specification, the learned court below said:
"The loss to the children, of course, was one from whom they might expect some inheritance, if you think the business was such as to warrant them in that hope."
This statement presented to the consideration of the jury an element in measuring the damages, which is extremely vague. The possibility of accumulating an estate by the decedent was very remote. The testimony did not show any accumulation up to the time of his death, and, whether or not he could have succeeded in gathering more than would have provided for his own wants during the remainder of his life, was purely conjectural. If the subject were considered at all by the jury in making up the verdict, it could only result in confusion and speculation. An expectation of inheritance is not properly one of the elements of loss to children, in a case of this kind, and should not be allowed to enter into the question, in any way whatever. The first specification is sustained.
Another question was pressed in the oral argument at bar, which may be considered in connection with the remaining assignments of error. It grows out of the fact which is disclosed by the record, that this action was brought jointly against the city of Philadelphia and the Electric Traction Company, and the firm of J.W. Hoffman & Company, under the allegation that they are all jointly liable for damages to the plaintiff. The defendants are all sued as joint tortfeasors, evidently under the idea of a community of interest and a concurrent responsibility. Recovery was had, however, against one of the defendants only, as the evidence failed to show that the act complained of was joint.
This case is an illustration of a practice which is not to be commended. Joining several parties as defendants without regard to the question of the tort being joint, does, no doubt, relieve the plaintiff of the responsibility of finding out, before beginning his action, who is justly chargeable with the wrong causing the injury, as it leaves that question to be developed at the trial. The plaintiff may profit by the contention which naturally arises among the defendants, in which each seeks to charge the other. But such a course does not tend to an orderly trial, nor the attainment of justice.
It is hardly asking too much of a plaintiff that, before setting the machinery of the law in motion, he be so sufficiently sure of the facts as to know whether the injury for which he complains was a separate act of one party, or a joint act of two or more.
"If, in legal consideration, the act complained of . . . . can only be considered the tort of the actual transgressor, or the distinct tort of each, a separate action against the actual wrongdoer only, or against each, must be brought:" 1 Chitty's Pleading, 97.
We are aware that it is thought that the effect of a misjoinder may be cured by taking a verdict against one defendant only; and authority is not lacking to support this view. But this remedy is not adequate. The mischief in unwarrantably joining as defendants parties who are not, in fact, joint wrongdoers, is, in the confusion and disorder resulting at the trial, and the increased difficulty in arriving at a just verdict.
It is not necessary to sue all the parties guilty of committing a tort; for joint wrongdoers are liable jointly and severally. And, where a joint suit is brought against a number of defendants, if the evidence shows that one of the parties was not connected with the tort, a verdict or a nonsuit, as to him, is proper. A joint verdict may then be rendered against such of the defendants as are jointly liable. But, if no concert of action is shown, and, therefore, no joint tort, and the case is one of separate tort or torts, upon the part of one or of several defendants, the action is not sustained, and there should be no verdict against any one. In a suit for a joint tort there should be no recovery upon proof of one or more separate torts. When a joint tort is charged, a joint tort must be proved, in order to sustain the action. The allegation and the proof must agree in cases of tort, as in other cases.
The defendants themselves often seem to overlook the importance of raising for decision the question whether, in point of fact, the particular case is one of joint tort. Turton v. Powelton Electric Co., 185 Pa. 406, is an instance. The evidence showed separate acts of the defendants, and no ground for contending that there was any joint tort. Yet the defendants apparently accepted the tort as alleged; that is, as if joint, and argued upon that theory, and the decision seemingly went upon the same assumption.
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