194 Pa. 516 | Pa. | 1900
Opinion b?
According to the plaintiff’s statement of her cause of action she had not assumed the relation of passenger and carrier with the defendant at the time of the loss of her goods. She distinctly states that shq intended to become a passenger and sent on her trunk to the station where it was left awaiting her arrival, and that in the mean time, and before her arrival at the station, the trunk was rifled of a large part of its contents which she never received back. She further states that, nevertheless, she did become a passenger as she had intended, and that the missing articles were never redelivered to her. According to this, at the time the articles were taken she had not become a passenger, and hence the company never did undertake to carry her and her missing baggage to her destination. It follows that the cause of action could not be founded upon a contract to carry the plaintiff and her missing articles to her destination, and hence the loss of them is not a breach of a contract of carriage. The statement further proceeds to say that “ the defendant did not safely keep the said trunk and baggage, but so negligently and carelessly kept the same that before, and at the time the plaintiff reached the station to pay her fare and take her contemplated journey, almost all the articles of baggage which said trunk contained when delivered to defendant as aforesaid were missing from said trunk.” It is evident therefore that the cause of action is the negligent and careless keeping of the trunk before the plaintiff became a passenger. That being so, the remedy would be an action of case to recover damages for negligence, which is essentially an action ex delicto, as well since as before the passage of the act of May 25, 1887. That act only assumes to group together into an action of assumpsit those demands arising ex contractu which were theretofore “ recoverable in debt, assumpsit or covenant,” and all actions of trespass, trover or trespass on the case into» one action “ to be called an action of trespass.” In the case of Osborn v. First National Bank of Athens, 154 Pa. 134, we held that no affidavit of defense could be required in an action of debt to recover a penalty, for the double reason that it was substantially
We think an examination of the act of 1887 clearly shows that it was the intent of the legislature to confine the remedy by judgment for want of an affidavit of defense to actions ex contractu alone, as they were before the act was passed, and not to extend this remedy to actions ex delicto, or in their nature ex delicto. Thus, in section 8 of the act, it is provided that the plaintiff’s statement shall contain “a concise statement of the plaintiff’s demand, as- provided by the fifth section of the act of twenty-first day of March, one thousand eight hundred and six, which, in the action of assumpsit, shall be accompanied by copies of all notes, contracts, book entries, or a particular reference to the records of any court, within the county in which the action is brought, if any, upon which the plaintiff’s claim is founded, and a particular reference to such record, or to the record of any deed, or mortgage, or other instrument of writing recorded in such county, shall be sufficient in lieu of the copy thereof.”
The 5th section of the act provides that, “In the action of assumpsit, judgment may be moved for want of an affidavit of defense, or for want of a sufficient affidavit, for the whole or part of the plaintiff’s claim, as the case may be, in accordance with the present practice in actions of debt and assumpsit.”
The judgment of the Superior Court is reversed and the •judgment of the common pleas, No. 4, is affirmed.