Miller v. Allentown & Bethlehem Rapid Transit Co., Appeal, No. 242

Appeal, No. 242 | Pa. | Jul 15, 1897

Lead Opinion

Opinion by

Mr. Justice G-been,

The learned counsel for the appellant, with entire candor, concedes that if the plaintiff suffered damage and had brought an action of case instead of an action of trespass, the county would be responsible. This was certainly ruled by this court in County of Chester v. Brower, 117 Pa. 647" court="Pa." date_filed="1888-01-09" href="https://app.midpage.ai/document/county-of-chester-v-brower-6238759?utm_source=webapp" opinion_id="6238759">117 Pa. 647. But .they contend that no recovery can be had in an action of trespass, and they complain that the county was brought in by way of amendment, not having been made a party at the inception of the ‘suit. So far as the amendment as to parties is concerned it is not before us-because no assignment of error has been made on that ground. But the county was brought in by means of an alias summons duly served, and appeared by counsel and pleaded to issue, and went to trial on the merits. Thereafter it could not be claimed that the county was not duly a party and bound by the proceedings. We do not concede that the amendment was not properly granted but it is not necessary to discuss the question for the reason above stated. The only matter seriously discussed by the appellant is the right to recover in the present form of action. It must be conceded that there would have been much force in the appellant’s contention prior to the passage of the Procedure • Act of May 25, 1887, P. L. 271, abolishing all distinctions between trespass and case. But in the case of Duffield v. Rosenzweig, 144 Pa. 520" court="None" date_filed="1891-10-26" href="https://app.midpage.ai/document/duffield-v-rosenzweig-9320041?utm_source=webapp" opinion_id="9320041">144 Pa. 520, we held that the effect of the act of 1887 was to abolish the distinctions between these actions, and that a recovery might be had in either form. Mr. Justice Clark, delivering the opinion said, “We are of opinion that perhaps an action of trespass technically so called, could not have been maintained, but by the Act of May 25, 1887, P. L. 271, the distinctions theretofore existing between actions of trespass, trespass on the case and trover, so far as they relate to procedure, were abolished, and although the plaintiff’s statement sets forth his claim as in trespass, we cannot, in view of the provisions of the statute, distinguish in the form of the procedure one from the other. If the facts establish his right to recover in either form, therefore, he is entitled to judgment.” It is true in the present case the action is in trespass, but the injury is consequential, and therefore at common law the remedy should have been in case. But the act of 1887 was intended to, and did, effect a radical change in the common law upon this subject, and as-held in the above cited case, a recovery may be had in the action of trespass although the injury sustained was formerly remediable only in case. As to the fact and quantum of the injury the verdict is conclusive. The assignments of error are not sustained.

Judgment affirmed.

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Dissenting Opinion

Dissenting opinion by

Mr. Justice Mitchell :

, I am unable 'to concur in this judgment. It sanctions a change which is not an amendment at all, but a substitution of a new cause of action against a new party, a perversion of the statutes of amendment going far beyond any precedent however liberal. It is no answer to say that the count}'- appeared ánd thereafter is estopped from denying that it was a proper party. It had no choice in the matter. It was served with an alias summons, and pleaded under protest after the court had overruled its objection to being made party by the so-called amendment. These facts appear on the face of the record and are brought before us by the second assignment of error. The appellant may be liable for damage done to plaintiff but that fact should be ascertained by a proper action properly brought against it.