Walker v. City of Philadelphia
45 A. 657
Pa.
1900
Check Treatment

Opinion by

Mb. Justice Mitchell,

1. The first question to be considered is the effect of the verdict and judgment previously obtained against the city by the plaintiff’s wife. The record was admitted and held conclusive as to the city’s negligence in the accident out of which tbe present action arises. This was error. There was no identity either of parties or of rights. The first action was by husband and wife for injuries to the wife. The husband was only a nominal party and since the act of 1887 need not have been joined even for formality. “ Parties in the larger legal sense are all persons having a right to control the proceedings, to make defense, to adduce and cross-examine witnesses, and to appeal from the decision if any appeal lies:” 1 Greenleaf on Evidence, sec. 535. The right of the wife in the first action being for a tort done to her, was her separate property by the express words of tbe Act of June 3, 1887, P. L. 333, and the husband could not have controlled or interfered with the conduct of the suit or appealed from the result. In Fearn v! Ferry Co., 143 Pa. 122, a closely analogous case, our Brother McCollum said: “ ft is contended by the appellant that the injuries for which these suits were brought were received at the same time and place, and were attributable to the same cause, to wit: the neglect of the defendant company to keep its boats in a reasonably safe condition for the ingress and egress of its passengers. Assuming that the claim of the appellant is correct, it does not follow that a deposition taken in one action is admissible as evidence in the other. The actions are not between the same parties, although we have the same defendant in each. The fact that the plaintiff in the first action was the wife of the plaintiff in this action, or that she is now his widow and administratrix, can make no difference in the rule which allows testimony taken in one action to be given in evidence on the trial of another which involves the same subject-matter and is between the same parties or their privies. The joinder of the husband in the former suit was merely formal, and it did not *174give him control of or an interest in it. It was the wife’s claim that was litigated; the judgment was obtained in her right, and it was exclusively hers. Identity of subject-matter, in whole or in part, and identity of parties in interest must unite, to render a deposition in one case admissible in another.”

In order to come within the rule as to res adjudicata the first judgment must have been binding on both parties to the second action. “No party is as a general rule bound in a subsequent proceeding by a judgment, unless the adverse party, now seeking to secure the benefit of the former adjudication, would have been prejudiced by it if it had been determined the other way:” Freeman on Judgments, sec. 159. If the wife’s action had failed for want of evidence of the city’s negligence, and there had been a verdict for defendant, the plaintiff, having been only a nominal party with no control over that action, would not have been barred from his right to prove negligence in his own suit. As he would not have been prejudiced by one result he cannot claim the benefit of the other.

Nor was his claim privy to or derived from the right of the wife. His action now is on his own common-law right to compensation for the loss of his wife’s services. No settlement or disposition of her claim could affect his without his consent. Indeed, it was on this ground that the court below struck off the entry of discontinuance.

No exact precedent has been found in this state, though Fearn v. Ferry Co., 143 Pa. 122, already cited, is closely analogous, and the reasoning entirely in harmony with our present views. In other states the exact precedents are few and not harmonious. We are thus left to decide upon general principles, and on these we are clearly of opinion that the record of the wife’s action was res inter alios acta, and so far from being conclusive evidence of the city’s negligence it was not admissible at all.

2. There was also error on the subject of damages in permitting plaintiff’s daughter to testify to what she was earning in her employment as a dressmaker which she gave up to wait on her mother after the injury. Conceding, though the sufficiency of the evidence is questionable, that plaintiff had proved an express contract to pay his daughter for services which as *175a member of the family were prima facie presumed to be rendered gratuitously (Goodhart v. Penna. R. Co. 177 Pa. 1), yet the measure of compensation for which the city could be held liable was the ordinary wages of such attendance. What the daughter had earned or could earn at her independent trade was wholly irrelevant and misleading.

3. On the whole case it is clear that the plaintiff cannot recover at all. The wife having obtained a verdict, a settlement was effected by which the city withdrew its motion for a now trial, the amount of the verdict was reduced, and as part of the consideration for prompt payment by the city without further contest, the husband’s right of action was barred by the issue of a writ and its discontinuance and settlement of record. If the plaintiff authorized that suit he is bound by the discontinuance as part of the settlement of the suit by his wife. If he did not authorize it then no suit was brought within the period of limitation, and he could not, nor could the court by striking off the discontinuance, permit him to authorize or ratify it nunc pro tunc after the statute had closed upon his right of action. A distinction is sought to be made, and the daughter was brought forward to show that acting for her father she authorized counsel to bring the suit but not to settle or discontinue it. She testified: “ He (the attorney) was to bring my mother’s case first. If it was decided in her favor my father’s was to be brought afterwards. . . . Q. You left it all to him. A. Yes, sir.” This is all there is of it and the proof* falls far short of the offer, but taking it in its fullest and most favorable aspect for the plaintiff:, it goes only to show that the time of bringing the father’s suit was to be in the discretion of counsel after a favorable result in the first action. And this discretion never was exercised. A suit was brought and immediately discontinued of record, but it was as a part of the settlement of the wife’s action. It was not brought as an assertion of the plaintiff’s right and effort to recover upon it, nor was any other suit ever brought by that counsel. Suit was subsequently brought by other counsel on the instruction of plaintiff, and this discontinued suit was found to stand in the way. Plaintiff then for the first time, sought to avail himself of the action of his first counsel in bringing this suit. He could only do so cum onere. If he adopted it at all he must adopt it as it really *176was, as part of the settlement of this wife’s verdict. To allow him to use it as an independent suit upon his right of action for loss of Ins wife’s services, would be not only in direct disregard of the facts of the case, but to allow him to perpetrate a fraud on the defendant. He could not himself distort an action brought solely for one purpose to another and directly repúgnate one, nor could the court authorize him to do so. The order striking off the discontinuance was improvidently and erroneously made, and the statutory bar having become complete, the striking off the discontinuance could not even operate .as an available new writ. The defendant’s first point should have been .affirmed and the verdict directed for defendant.

Judgment reversed and now judgment entered for defendant.