170 A. 871 | Pa. Super. Ct. | 1933
Argued October 11, 1933. On August 15, 1928, at 7:30 o'clock in the evening, Helen Briggs, seven years of age, while running in a game of hide-and-go-seek, caught her foot in a hole in the sidewalk, fell over against a lamp post, and was injured. The accident occurred in front of her home, 5223 Morris Street, in the City of Philadelphia. An action in trespass was instituted by Helen Briggs, by her next friend and father, Harry Briggs, and her parents, Harry Briggs and Marion Briggs, in their own rights, against the City of Philadelphia. The original defendant issued two writs of scire facias to join, as additional defendants, Harry Briggs, as the lessee of the property, and the Germantown Trust *53 Company, as owner. The jury rendered a verdict in favor of the minor plaintiff, Helen Briggs, against the City of Philadelphia, in the sum of $1,200, and by direction of the court, the jury returned a verdict in favor of the City of Philadelphia against Harry Briggs, the tenant, in the sum of $1,200. As the lease contained an express covenant that the tenant should keep and maintain the property in good order and repair, the court further directed that the jury return a verdict in favor of the Germantown Trust Company and against the City of Philadelphia. These two appeals by the city followed. The cases were argued together and will be disposed of in one opinion.
There is no dispute as to the city's neglect, the child's freedom from contributory negligence, or the amount of the verdict.
The first question for consideration is, Can a minor child recover damages from a municipality for personal injuries sustained by reason of a defect in the sidewalk of a property occupied by her father as tenant, and with whom she was living at the time of the accident? Neither counsel's research nor our own has been rewarded in finding a case squarely decisive of this question.
The city contends that the minor plaintiff is not entitled to recover as her rights are no greater than the rights of her father as tenant, who owned a primary duty to keep the sidewalk in repair, and as he can not recover from one secondarily liable, the city is not responsible to her. The legal status of the minor is different from that of the father as tenant. She had no legal obligation to repair the sidewalk, nor was there an implied or express contractual relation between her and the city or the owner. She, in her play, was using the pavement as a member of the public, and the city owed the same duty to her as to any other person to keep the sidewalk in safe condition. It was not relieved of this independent duty by the *54 failure of the tenant or the owner to repair the defect. It was for this neglect that this suit was brought.
It was expressly ruled in Bucher v. Sunbury Boro.,
Our attention is directed by the appellant to Robinson v. Heverin,
The next position of the appellant is that the unemancipated minor may not sue a parent for personal injuries arising out of the negligence of the parent, nor may a recovery be had against the city, as it has a right of indemnity against the father for any recovery; otherwise, the minor would be permitted to do indirectly what could not be done directly. This action is not brought against the parent, but against the defendant city. The issuance of the scire facias to bring in additional defendants did not change the right of the minor plaintiff; her action proceeded against the original defendant only, "exactly as it would have done if additional defendants had not been named": Vinnacombe et ux. v. Phila. Am. S.,
There never has been a common law rule that a child could not sue its parent. But, there is substantial decisional authority that it is not permitted, on the theory that it is disruptive of the family peace, destructive of the enforcement of discipline, and, therefore, against public policy. We recognize the wisdom of these rulings as the state and society are vitally interested in the integrity of, and harmony in, the family. In support of this doctrine, see Foley v. Foley,
Nor may the parent's negligence be imputed to the child. In Schubert v. Schubert Wagon Co. (N.Y.),
There remains for our consideration the action of the court in directing a verdict for the Germantown Trust Company. The lease in question provided as follows: "...... for the term of one month from the eighteenth day of June A.D., one thousand nine hundred and twenty-four (1924) at the rent of nineteen ($19) dollars per month to be paid on the eighteenth day of each month in advance. ..... And it is hereby mutually agreed, that either party hereto may determine this lease at the end of the said term by giving the other notice thereof, at least thirty days prior thereto, but in default of such notice this lease shall continue upon the same terms and conditions as are herein contained for a further period of one month and so on from month to month unless or until terminated by either party hereto giving to the other thirty days notice for removal previous to the expiration of the then current term."
The city maintains that the lease created a series of monthly renewal terms and that the property was demised to the tenant with a defect in the sidewalk, existent at the beginning of one of these renewals; that, therefore, the owner was responsible for the injury to the minor plaintiff, and was primarily liable for its delinquency. Furthermore, it contends that the owner is not relieved of its liability to indemnify the city by the covenant in the lease, by which the tenant agrees to maintain the premises in good repair: Kane *58
v. Lauer,
In our opinion, the lease created a continuing tenancy and not a new letting at the beginning of each month. We, therefore, concur with the court below in holding that "the tenant having remained in possession under the lease after the first month, each subsequent month is considered a continuance of the original lease: 35 C.J. 1038." See, also, Williams' Pennsylvania Law on Landlord and Tenant, § 78. The cases of Cunningham v. Rogers,
In our judgment, however, the trial judge committed error in rejecting an offer of proof that the Germantown Trust Company had been notified of the defective condition of the sidewalk from two to two and a half months prior to the accident, by verbal notification to a clerk and by letter sent by Mrs. Briggs, to establish the actual knowledge of the defective sidewalk by the owner. While the offer to prove oral notice was not as definite as is desirable if it could have been shown that a letter giving notice of the nuisance was actually sent and received, this would have been sufficient. We think that an opportunity should have been given to prove this all important evidence.
The City of Philadelphia passed an ordinance May 3, 1855, § 1, 141, providing as follows: "The footways of all public streets and highways, and the cartways *59
and footways of all private streets, shall be graded, paved and curbed and kept in repair, at the expense of the owners of ground fronting thereon." The Act of May 16, 1891, P.L. 75, § 11 (
The judgment in No. 311, October Term, 1933, is affirmed, and judgment in No. 312 is reversed with a venire.