Wilkinson v. North East Borough

215 Pa. 486 | Pa. | 1906

Opinion by

Me. Justice Elkin,

Under the authority of our cases and the testimony offered at the trial, the alleged negligence of the defendant as well as the contributory negligence of the plaintiff were questions of fact to be submitted to and determined by the jury. We therefore overrule the assignments of error relating to these questions.

The learned counsel for appellant mainly rely on the fourth specification of error which raises the question of the power of the court to authorize the amendment of the record after the expiration of two years from the date of the accident. . The pertinent facts in reference to this question are as follows : The plaintiff was injured March 2,1901. On March 24,1902, a praecipe in trespass was filed, but the prothonotary by mistake issued the summons in assumpsit. On April 14, 1902, defendant entered an appearance de bene esse. On March 9, 1903, seven days after the statute of limitations had become a bar the court permitted an amendment to be made correcting the record so as to show that it was an action in trespass as the pracipe called for, instead of assumpsit as named in the summons by mistake. The appellant earnestly contends that the amendment permitted a change in the form of action, which it is argued cannot be made after the statutory period in which to bring the action had expired. This contention overlooks the distinction between cause of action and form of action, as well as the particular facts of the present case. The general rule on this subject is that no amendment can be allowed, the effect of which is to introduce a new cause of action so as to deprive the opposite part}' of a valuable right or to injuriously affect the intervening rights of third parties: Strock v. Little, 33 Pa. 409; Leeds v. Lockwood, 84 Pa. 70; Duffey v. Houtz, 105 Pa. 96; Grier Brothers v. Assurance Co., 183 Pa. 334. It is contended by appellee that the amendment permitted to be made did not change the cause of action. The court below held that it had the inherent power to correct the mistakes of its own officers as they appear of record, and that such mistakes can be corrected at any time during the course of the trial before or after the statute has become a bar. The following cases are cited in support of this position: Ihmsen v. Monongahela Navigation Co., 27 Pa. 267; Marshall v. Oil Company, 198 Pa. 83; Wright v. Eureka Tempered Copper Co., 206 Pa. 274. We agree that if the amendment changed the cause of action in fact it could not be made after the statutory period in which to bring the action. We do not agree, however, that in the case at bar the cause of action was changed. The praecipe was in trespass. This court held in Fitzsimons v. Salomon, 2 Binney, 436, that the praecipe is part of the record. To the same effect is Grier v. McGlathery, 16 W. N. C. 457; Wilhelm’s Appeal, 79 Pa. 120 ; Wolf v. Wolf, 158 Pa. 621. In Commonwealth v. Silcox, 161 Pa. 484, it was held that no party has a right to have the error of the clerk perpetuated for his benefit. In Re Road in North Franklin Township, 8 Pa. Superior Ct. 358, it was held that the amendment of the record so as to make it conform to the facts is not prejudicial to the rights of the party. We have carefully examined all the authorities cited by the appellant bearing on this question, but have not been convinced that any of them support the contention as applied to the facts of this case. The praecipe being a part of the record and having been filed in trespass, the amendment permitting the word “ assumpsit ” inserted in summons by mistake of the prothonotary to be changed to “ trespass ” to follow praecipe, was not a change in the cause of action.

There only remains one other question to be considered. Did the court commit reversible error in instructing the jury as to the proper measure of damages? We think it did. Indeed, counsel for appellee does not seriously contend that the instructions of the learned court in this respect were correct, but it is argued that, inasmuch as neither plaintiff nor defendant asked for specific instructions as to the measure of damages, it is too late to raise the question now. A number of cases are cited in support of this position. Baker v. Irish, 172 Pa. 528, is particularly relied on. It is there said the court will not reverse for inadequacy of the charge on the question of the measure of damages where the verdict is reasonable and moderate. To the same effect is Lewis v. Springfield Water Co., 176 Pa. 237. We agree that a judgment of the court below should not be reversed for inadequacy in the charge if no injury resulted to the complaining party, and the cases above cited announce this rule. The rule, however, does not apply where the charge of the court is clearly erroneous. Under such circumstances, it is not a question of inadequacy, but of error. In every case of negligence it is the duty of the court of its own motion to instruct the jury as to the proper measure of damages. Without such instruction a jury has no legal guide for intelligent consideration and correct conclusion. The learned trial judge instructed the jury that “ in arriving at tbe amount, you would- find what •her earning power was prior to the accident, and deduct from that her earning power since the accident, and then take the period of time she will be deprived of her earning power and compute it accordingly.” This instruction is in plain violation of the rule laid down in Goodhart v. Penna. Railroad Company, 177 Pa. 1, wherein it is said: “ When future payments are to .be anticipated and capitalized in a verdict, the plaintiff is entitled to only their present worth. This is the exact amount of the equivalent of the anticipated sum.” In the hurry of the -trial we have no doubt the instruction complained of was inadvertently given, but it was clear error and the judgment must be reversed on this ground.

Judgment reversed and a venire facias de novo awarded.