87 Pa. Super. 6 | Pa. Super. Ct. | 1925
Argued October 16, 1925. The main question raised by these appeals is the right of the plaintiffs to amend their statement of claim upon a material matter, which changed the character of evidence necessary in the action and affected substantial rights of the defendant, after the statute of limitations had barred a new action.
On November 23, 1919, about midnight, Mrs. Hanley, one of the plaintiffs, while walking on Market Street, Philadelphia, between Fifty-ninth and Sixtieth Streets, was injured by the giving way of an iron cellar door in the sidewalk. On February 3, 1921 she and her husband brought an action of trespass against Daniel F. Ryan, one of these defendants, and in her statement of claim averred that she had been hurt by the collapse of the iron cellar door of property 5908 Market Street, belonging to said defendant. Daniel F. Ryan filed an affidavit of defense averring that premises 5908 Market Street were owned by him and his wife, Helen M. Ryan, the other defendant in this action as tenants by entireties and denying that the cellar door on said premises had collapsed or was in a defective condition.
On June 23, 1921, without discontinuing the former action, the plaintiffs brought this action in trespass. Again the statement of claim averred that Mrs. Hanley had been injurd by the collapse of the iron cellar *9 door in the sidewalk of premises 5908 Market St. belonging to defendants, and alleged its long-standing defective condition. Defendants filed an affidavit of defense denying the collapse or defective condition of the cellar door.
The case came up for trial on December 13, 1923, when plaintiffs moved to amend their statement by changing the locus in quo to 5916 Market Street. Defendants objected, pleaded surprise and excepted to the order allowing the amendment.
On the trial upon the amended statement, March 2, 1925, defendants' objections to testimony relating to 5916 Market Street were overruled and verdicts were rendered for the plaintiffs upon which judgments were duly entered.
Defendants were the owners and occupiers of 5908 Market Street. They were also the owners but not the occupiers of 5916 Market Street. The latter premises had been occupied for some years by one Littlefield who was in possession as tenant when defendants bought the property in 1916 and remained in possession under several leases until December, 1919. The leases provided that the lessee, Littlefield, should keep the premises in good condition, order and repair and do all repairing necessary to keep the property in good condition, except repairing the main roof and painting the outside woodwork and repairing chimneys.
The defendants' liability as respects the two properties was different. As to 5908, which they owned and occupied, their duty as respects the safety of the premises was primary and absolute; as to 5916 the primary duty rested on the tenant, Littlefield, not only by reason of the implied obligation of a tenant to make repairs, (Long v. Fitzsimmons, 1 W. S. 530), but also because of his express covenant to do so. Defendants were not liable to the public for the defective condition of the premises unless they were not in good *10
repair when leased or unless they had bound themselves by the lease to keep them in repair: Bears v. Ambler,
But another consideration enters into the case. While it is true that the covenant in the lease requiring the lessee to make repairs did not operate to relieve the lessor from a duty resting on him when the contract was executed nor discharge the lessor from his responsibility to the public or third persons, (Folkman v. Lauer,
Thus by plaintiffs' amendment as to the place of the accident we not only have an action requiring a different measure of proof and a changed relationship on the part of the defendants, but the delay incident thereto is so great as possibly to affect the right of these defendants to indemnity against the party upon whom rested the duty — as between themselves — of keeping the cellar door in good condition and making such repairs to it as were necessary.
It has been repeatedly held that after the statute of limitations has run a plaintiff cannot by amendment shift his ground of complaint, introduce a new cause of action, cure a fatal defect in the pleadings, change his cause from a common law to a statutory proceeding or deprive the defendant of any valuable right: Card v. Stowers Pork P. P. Co.,
On review of all the authorities we are of opinion that the amendment should not have been permitted. While there was only one accident, so was there only one accident in each of the trespass cases included in the foregoing list. The amendment was, nevertheless, refused in those cases because it placed the defendant in a new relationship, or changed the cause of action declared upon, or required a different measure of proof or deprived defendant of some substantial right.
The cases relied upon by the learned court below in its brief memorandum or opinion are distinguishable. In Gail v. Phila.,
The first, third, fifth, thirteenth and fourteenth assignents of error are sustained. It is unnecessary to pass upon the others. The judgments are reversed and the record is remitted to the court below with directions to enter judgments for the defendants non obstante veredicto.