Citation Numbers: 11 A.2d 683, 139 Pa. Super. 242
Judges: OPINION BY KELLER, P.J., March 2, 1940:
Filed Date: 9/29/1939
Status: Precedential
Modified Date: 1/13/2023
Argued September 29, 1939. Plaintiff brought this action of trespass against the defendant to recover damages for personal injuries alleged to have been sustained by him through the negligence of the defendant.
The plaintiff's statement of claim averred in substance that defendant owned and operated a store on the west side of 60th Street, between Market and Ludlow Streets, a public highway in the City of Philadelphia; that on November 11, 1935 while plaintiff was walking in front of 18 S. 60th Street, he tripped and was thrown by a board which partly surrounded a newly cemented block of defendant's pavement; by reason whereof he fell and sustained injury; that the said board surrounding the newly cemented pavement block "existed on said sidewalk for some period prior" to said fall; and that the defendant negligently failed to give warning of the dangerous position of the board or to police or barricade the aforementioned cement block, or place a light or other signal to warn of the danger of the condition of the pavement so as to protect from injury anyone who might walk over and along the west side of 60th Street. *Page 245
It will be noted that there was no definite averment that property No. 18 S. 60th Street formed a part of defendant's store. It is clear that the accident was not due to a hole or defect in the sidewalk itself, but was caused by a board which "partly surrounded a newly cemented block of defendant's pavement", and had evidently been put there to prevent walking on the cement block until the concrete had set and hardened. The statement did not aver that the board surrounding the newly laid cement block had been placed there by the defendant, or its agents, employees or servants. The defendant did not file an affidavit of defense.
This appeal is concerned with the correctness of certain rulings of the trial court on the rejection of evidence offered by the defendant and the effect to be given certain undenied averments in the plaintiff's statement.
The Practice Act of 1915, P.L. 483, makes a distinction between actions of assumpsit and actions of trespass, as respects the necessity for filing affidavits of defense. In the former, they are required in all cases. In the latter, — actions of trespass —, "the averments, in the statement, of the person by whom the act was committed, the agency or employment of such person, the ownership or possession of the vehicle, machinery, property or instrumentality involved, and all similar averments, if not denied, shall be taken to be admitted in accordance with section six;1 the averments of the other facts on which the plaintiff relies to establish liability, and averments relating to damages claimed, or their amount, need not be answered or denied, but shall be deemed to be put in *Page 246 issue in all cases unless expressly admitted. . . . . ." (section 13).
In accordance with the above provisions the plaintiff offered in evidence on the trial the paragraphs in the statement averring (1) the incorporation of the defendant; (2) that defendant owned and operated one of its stores on the west side of 60th Street between Market and Ludlow Streets, Philadelphia; and (3) that 60th Street was a public highway in the City of Philadelphia. The defendant also admitted of record that it was the owner of the property at 18 So. 60th Street. Plaintiff's counsel then called the plaintiff who testified that about 12:30 o'clock in the morning of November 11, 1935, while walking south on 60th Street, he had stumbled over a wooden moulding placed around a fresh cement block, three feet by three feet, abutting on the curb in front of defendant's store. The moulding was square and was made of boards and was about six inches high. He noticed no lights there. Plaintiff also called Charles Given, the manager of defendant's store, who testified that a cement block, three feet by three feet, had been put in the pavement adjoining the curb. He could not tell when or what time of day the cement block had been put in — "I let the contract to the contractor and it was up to him." On cross-examination of this witness the court would not allow him to testify who put the cement block in or give any details of who did it or as to the contract for doing the work. So, too, when it came to the defendant's case, it was not allowed to offer any testimony showing that the defendant had employed one Thomas Dougherty as a contractor to do this work and that he was an independent contractor, with full control over the manner and means of doing the work. The court excluded all this testimony on two grounds: (1) Because defendant had filed no affidavit of defense, and ownership of the property carried with it responsibility for the condition of the sidewalk; and (2) because defendant had not brought in Dougherty as an additional *Page 247 defendant by scire facias proceedings under the Act of April 10, 1929, P.L. 479, and its amendments. In our opinion neither ground justified the exclusion of the evidence.
(1) While it is true that by failing to file an affidavit of defense the defendant admitted that it owned and operated a store on 60th Street, and admitted on the record at the trial that it owned the store at 18 So. 60th Street, it did not thereby admit any negligence in connection with such ownership and operation. Negligence is never admitted from a failure to deny ownership. It is also true that an owner and operator of a store building is generally responsible for the negligent maintenance of a sidewalk in front of his property, which has existed long enough to put him on notice of the defect. But such negligence must be proved at the trial and can always be defended against. It is only averments of fact contained in theplaintiff's statement of claim, as respects the agency oremployment of a person who committed the negligent act, or theownership or possession of the instrumentality, etc. involved in the negligent act, which are admitted in actions of trespass by failure to file an affidavit of defense. Legal conclusions
which may be deducible from allegations of fact in the plaintiff's statement are not admitted by failing to file an affidavit of defense. An owner and occupier of real estate is not an insurer. He is liable only for injuries resulting from his negligence, and he has a right to produce evidence which rebuts his negligence. This was not the case of a hole or defect in the sidewalk into which the plaintiff fell. He fell over a wooden moulding or barrier, six or eight inches high, purposely put there to keep pedestrians from walking on the newly made cement block until it had hardened. The moulding or barrier was the instrumentality involved in the plaintiff's fall; just as a coal hole lid was the instrumentality involved in Vendig v. Union League,
This is established by many decisions of the Supreme Court and this court. Section 16 of the Practice Act as amended by Act of April 22, 1929, P.L. 627, also recognizes it: "Except asprovided in sections seven and thirteen [Sec. 13 covering actions of trespass] neither party shall be permitted at the trial to make any defense which is not set forth in the affidavit of defense or plaintiff's reply, as the case may be. . . . . ." This exception allows the defendant in an action of trespass to make any defense which he is not precluded from making by reason of his tacit admission of the averments offact in the plaintiff's statement of claim, as to his ownership or possession of the instrumentality involved.
In Jones v. McNichol Paving Const. Co.,
In Harrison v. Collins,
In Vendig v. Union League,
In Wilson v. Adams Express Co.,
In Flanigan v. McLean,
In Fleccia v. Atkins,
See also, Fazio v. Pittsburgh Rys. Co.,
When it is remembered that the plaintiff's fall was not caused by a hole or break or other defect in the pavement — he fell over a wooden moulding, board or barrier which had beenplaced there by somebody, and was consequently the instrumentality involved — and the statement *Page 252 of claim contained no averment whatever as to whose instrumentality it was, or who put it there, how can it be held that the failure of the defendant to deny what was not averred in the statement, prevents it from showing that the barrier was not put on the sidewalk by it, but by an independent contractor employed by it to repair or replace a cement block?
It is only averments of fact in the plaintiff's statement as to the ownership of the property or instrumentality involved, which under sections 6, 13 and 16 of the amended Practice Act are taken to be admitted and may not be defended against by a failure to file an affidavit of defense. The defendant admitted ownership of the property abutting on the sidewalk, but as the plaintiff's statement of claim contained no averments as to who put the moulding or barrier there — the instrumentality involved in plaintiff's fall — it was not required to deny what was not alleged in the statement.
(2) As to the other reason advanced by the court for refusing to permit the defendant to show that the board, moulding or barrier was placed on the sidewalk by an independent contractor employed to put the sidewalk in good repair, it is only necessary to state that recourse by a defendant to the Act of April 10, 1929, P.L. 479, and its amendments, empowering him to sue out a writ of scire facias to bring additional defendants upon the record, is wholly voluntary, and his failure to take advantage of the enabling provisions of the statute affects none of his legal rights in the action against him or against those who may be liable to him, because of legal duties growing out of the cause of action sued upon.
The assignments of error are sustained. The judgment is reversed and a new trial is awarded.
Harrison v. Collins , 86 Pa. 153 ( 1878 )
Jones v. McNichol Paving Con. Co. , 317 Pa. 246 ( 1934 )
Annett v. Amer. S. Co. , 333 Pa. 589 ( 1938 )
Vendig v. Union League of Phila. , 291 Pa. 536 ( 1927 )
Lutterschmidt v. Stahlnecker , 307 Pa. 5 ( 1932 )
Flanigan v. McLean , 267 Pa. 553 ( 1920 )
Wilson v. Adams Express Co. , 72 Pa. Super. 384 ( 1919 )
Anderson v. Supplee-Wills-Jones Milk Co. , 119 Pa. Super. 386 ( 1935 )
University Club v. Amer. Mut. L. Ins. Co. , 124 Pa. Super. 480 ( 1936 )
Charlap v. Lepow , 87 Pa. Super. 466 ( 1925 )