text:
    Liquid Carbonic Company, Appellant, v. Truby.

      Landlord and tenant — Execution—Goods of stranger.

    1. A landlord who enters judgment by virtue of a warrant of attorney contained in a lease cannot, under a fieri facias on such judgment, levy upon and sell the goods of a stranger found on the demised premises.

      Practice, C. P. — Raising question of law — Motion for judgment n. o. v.— Appeals.

    2. A legal principle not cited in the argument at the trial against a point for binding directions in favor of the defendant, may, all the same, be brought forward in argument in opposition to a motion for judgment in defendant’s favor non obstante veredicto. To hold otherwise would be contrary to the spirit as well as the letter of the Act of April 22, 1905, P. L. 286, one purpose of which was to give opportunity for more deliberate review and consideration of the facts and the law applicable to them than ordinarily can be had on the trial.
    Argued May 11, 1909.
    Appeal, No. 135, April T., 1909, by plaintiff, from judgment of C. P. Armstrong Co., Dec. T., 1907, No. 125, for defendants non obstante veredicto in case of The Liquid Carbonic Company v. Anna M. Truby and E. E. Truby, Administrators.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Replevin for a soda fountain. Before Patton, P. J.
    At the trial it appeared that plaintiff had leased the soda fountain in question to W. M. Weiss, the tenant of a drug store owned by D. A. Goldman. Goldman entered judgment on a warrant of attorney in his lease for rent in arrears and issued a fieri facias under which the soda fountain was sold. Subsequently the purchaser at the sheriff’s sale sold it to W. J. Truby. Truby died and his administrators were substituted in his place.
    Verdict and judgment for plaintiff for $666. Subsequently the court entered judgment for defendants non obstante veredicto.

      Error assigned among others was in entering judgment for defendants non obstante veredicto.

      Harry C. Golden, with him H. L. Golden, for appellant.
    In the case of Schock v. Waidelich, 27 Pa. Superior Ct. 215, and also in the case of Mitchell v. Coates, 47 Pa. 202, it is clearly-pointed out that there is a distinction between a distress for rent, and an execution for rent. In these cases, it is shown, beyond any question of doubt, that the incidents of a distress for rent do not attach to an execution for rent.
    On the argument of defendant’s motion for judgment non obstante, plaintiff was simply asking that judgment be entered on the verdict. Even conceding, for the sake of argument, but not as a fact, that plaintiff raised a new legal question at this time, it was not too late. The record of the court below was not yet complete. If a new legal question was raised by plaintiff, upon the argument of defendants’ motion for judgment non obstante, which we deny as a fact and the court below fully considered and passed upon this question in entering judgment, the court’s decision, if wrong, and if an exception has been taken to it by appellant, is reversible error: Dalmas v. Kemble, 215 Pa. 410; Buehler v. Rapp, 2 Woodward’s Decisions, 443.

      J. W. King, with him A.L. Ivory, for appellees.
    If legal questions that might have been raised are not raised at the trial it is too late to raise them on appeal: Herstine v. R. R. Co., 151 Pa. 244; Danley v. Danley, 179 Pa. 170; Fox v. Fox, 96 Pa. 60; Burkholder v. Stahl, 58 Pa. 371; Johnson v. Watson, 157 Pa. 454; Gorman v. Bigler, 8 Pa. Superior Ct. 440.
    The landlord had concurrent remedies: Snyder v. Kunkleman, 3 P. & W. 487; McComb’s App., 43 Pa. 435; Grant & McLane’s App., 44 Pa. 477.
    October 11, 1909:
   Opinion by

Rice, P. J.,

The verdict of the jury in favor of the plaintiff implies a finding that the plaintiff, the owner of the soda water fountain in dispute, had given notice to the landlord that the chattel was leased or hired, as the Act of April 28,1899, P. L. 117, requires. But upon the defendants’ motion for judgment non obstante veredicto under the Act of April 22, 1905, P. L. 286, the court held that the act of 1899 is unconstitutional, and that as the judgment under which the chattel was sold was for rent, a good title passed, and therefore entered judgment for the defendant. We are not at present convinced that the opinion of the court upon the question of the constitutionality of the act of 1899 is erroneous; but in the view we take of the other feature of the case it is unnecessary to express a more decided opinion upon that question.

The common-law rule that whatever goods and chattels the landlord finds upon the demised premises, whether they belong in fact to the tenant or a stranger, are distrainable by him for rent in arrear is, as its terms indicate, part of the law of distress, not of execution. But a landlord could not distrain goods which were in custody of the law, and it is still so. To meet this exception to the general rule the English statute of 8th Anne, ch. 4, provided, for the protection of the landlord, that goods on the demised premises should not be taken in execution unless the creditor pay the landlord the arrears of rent before they were removed, not exceeding in the whole the rent of a single year due at the time of the levy; “and our statute is nearly the same, the principal difference being that with us the year’s rent is paid out of the proceeds of the sale without regard to the removal of the goods:” Pierce v. Scott, 4 W. & S. 344. The statute here referred to is the Act of June 16, 1836, P. L. 755, secs. 83 and 84. The first of these sections provides, that goods taken in execution, and liable to the distress of the landlord, shall be liable to the payment of the rent due at the time of taking such goods in execution; and the next directs that, after the sale of such goods, by the officer, he shall pay out of the proceeds the rent so due. Speaking of these provisions it has been held: “It cannot be doubted that the object of these provisions was to make the landlord amends for taking away his power of distress by a judicial sale of the tenant’s goods liable thereto:” Greider’s Appeal, 5 Pa. 422. The same view of the statute was taken in Commonwealth v. Contner, 21 Pa. 266, 274, where it was said: “The right to be paid what rent was due but not for more than one year out of the proceeds of a sale on execution, comes in place of distress.” The English statute was construed not to apply to executions at the suit of the landlord Taylor v. Lanyon, 6 Bing. 536. Our statute, while differing in some particulars, furnishes no satisfactory evidence of an intention on the part of the legislature to add as an incident to an execution upon a judgment for rent the right to seize and sell the goods of a stranger which happen to be on the demised premises. Such construction would give the landlord an undue advantage and deprive the owner of the goods of rights which he would have had if he had proceeded by distress. See opinion of Tindal, C. J., in Taylor v. Lanyon, 6 Bing. 536. It ought not to be adopted without very clear evidence that such was the legislative intent. The only two cases cited in support of it are McCombs and Howland’s Appeal, 43 Pa. 435, and Grant and McLane’s Appeal, 44 Pa. 477. But these related to the rights of the landlord upon distribution, and in neither was the execution issued by him. They do not throw much, if any, light upon the question before us. We are constrained to the conclusion that the construction contended for by the appellees cannot be sustained either upon principle or authority.

It is said that this question was not raised on the trial, and therefore the appellant ought not to be permitted to raise it here. This contention must be based on something that occurred or was omitted in the course of the argument at the trial which does not appear in the record; for the plaintiff’s statement of claim, points and objections to the defendants’ offers of evidence were broad enough to raise it, and it is not conceded by appellant’s counsel that it was not raised in the argument of the points and the objections. Moreover, it was argued on the motion for judgment non obstante veredicto, and the legal principle for which the appellant contends was applicable to the evidence and precluded binding direction for the defendants. It would be strange indeed, if no legal principle, not cited in the argument against a point for binding direction in favor of the defendant, could be brought forward in argument in opposition to a motion for judgment in his favor non obstante veredicto. This would be contrary to the spirit as well as the letter of the Act of April 22,1905, P. L. 286, one purpose of which was to give opportunity for more deliberate review and consideration of the facts and the law applicable to them than ordinarily can be had on the trial: Dalmas v. Kemble, 215 Pa. 410. If for any reason sufficient to move the sound discretion of the trial judge justice required that the defendants have another hearing upon the question before another jury, the remedy was by making absolute the rule for new trial, not by entering á judgment which neither the verdict nor the law applicable to the facts in the case warranted.

We decide the question raised by the motion for judgment non obstante veredicto in favor of the plaintiff; but the pending motion for new trial prevents us from giving judgment in its favor on the verdict: Harper v. Keely, 17 Pa. 234; Dalmas v. Kemble, 215 Pa. 410.

The judgment is reversed and a procedendo awarded.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Walker v. Commonwealth, Appellant.

      Road law — Township roads — Automobiles—Prohibition of use of road.

    Township commissioners have no authority to prohibit the use of automobiles on a public highway of a township.
    Argued May 7, 1909.
    Appeal, No. 187, April T., 1909, by defendant, from judgment of C. P. No. 2, Allegheny Co., Oct. T., 1908, No. 127, reversing summary conviction by a justice of the peace in case of Thomas Walker v. Commonwealth.
    Before Rice, P. J., Porter, Henderson, Morrison and Or-lady, JJ.
    Affirmed.
    Certiorari to judgment of justice of the peace.
    Frazer, P. J., filed the following opinion:
    On July 5, 1908, plaintiff in error was arrested and taken before justice of the peace John Johnston, of Leet township, charged with “wilfully driving his automobile over and upon that portion of Little Sewicldey Road extending northerly from the intersection of Centennial Avenue with said Little Sewickley Road to the Sewickley Township line, in violation of an ordinance No. 43-3¡, ordained and enacted September 9th, 1907, by the commissioners of said Township.”
    It is agreed that the record of the justice shall be considered as showing that Leet township is a township of the first class, and that by an ordinance of its commissioners adopted September 9,1907, the driving of automobiles over the portion of Little Sewickley Road in that township between Centennial avenue and the Sewickley township line is forbidden under penalty of $10.00 for the first offense, and $25.00 for the second offense, and $50.00 for the third and subsequent offenses; and further, that Little Sewickley road is a public highway located and opened in the manner provided by law many years ago. After hearing, defendant was convicted of violating the ordinance, and fined $10.00. This certiorari was then taken and a number of exceptions filed to the record, several of which we would sustain and reverse the judgment of the magistrate, were it not for an agreement of counsel waiving all defects and withdrawing all exceptions, except those relating to the authority of the township to enact the ordinance complained of. Under that agreement if the township is vested with power to exclude automobiles from certain of its public roads the judgment of the magistrate must be affirmed; if not the judgment must be reversed. The ordinance under which the conviction in this case was had is as follows:
    “An ordinance prohibiting the driving of automobiles over a portion of the Little Sewickley Road.
    “Whereas, A portion of the Little Sewickley Road, hereinafter mentioned, is dangerous and unsuitable for the usé of motor vehicles; and
    “Whereas, By reason of the fact that said portion of said road is very narrow, and the turns thereon are abrupt, and the lands abutting along said road are thickly covered with timber and underbrush, and by reason of the thickness of the foliage along the sides of said road, and other conditions which are not remediable by any possible action of the commissioners at this time, the driving of automobiles or other motor vehicles over said portion of said road is dangerous alike to pedestrians and to persons in vehicles, whether motor driven or drawn by horses; and
    “Whereas, The conditions aforesaid make the use of said road, as a thoroughfare for automobiles, a menace to the life and property of citizens using said road;
    “Now therefore, Be it ordained and enacted by the commissioners of Leet Township, and it is hereby enacted and ordained by the authority of the same,
    “Section I. That the portion of Little Sewickley Road, extending northerly from the intersection of Centennial Avenue with said Little Sewickley Road to the Sewickley Township line be, and the same is hereby declared to be dangerous for use by automobiles, and the use of said portion of said road as a thoroughfare for automobiles or other motor vehicles is hereby prohibited.
    “Section II. Any person guilty of violation of this ordinance shall be subject to a fine of ten (10) dollars for the first offense, twenty-five (25) dollars for the second offense, and fifty (50) dollars for the third or any subsequent offense, said fines to be collected as now provided by law.”
    Public roads are laid out and opened for the use of all persons on equal terms, that is, to all who comply with the reasonable regulations of the duly constituted authorities. Primarily the duly constituted authority is the commonwealth, and its right, acting through the legislature, to prescribe that automobiles shall not be operated upon the public highways of the state is well established, both upon principle and authority, and it is equally well settled that having such power the commonwealth may in its discretion delegate its authority either in whole or in part to its various municipal divisions. It is also well settled that municipal corporations possess no powers except those conferred upon them by the legislature. Consequently it devolves on the township to show that townships of the first class have authority under the law as it now stands to exclude automobiles from the use of their public roads. The township contends that it has such power under the fifth clause of sec. 5 of the Act of April 28, 1899, P. L. 104, under which such townships are created, which is as follows:

      “And generally to take all needful means for securing the safety of persons and property within the township.”
    The words quoted above are from the clause of the township' classification act, which confers upon the township commissioners authority to establish and maintain police and fire protection, and in our opinion relate to “needful means for securing” protection in those respects, and do not, and were not intended to confer upon townships authority to prescribe rules for the use of highways by motor .cars or other vehicles. . This clause, consequently, confers no authority upon the commissioners to either regulate or prohibit the' use of certain vehicles upon the roads of the township, and we find no other section of the act which confers such powers on them. On the contrary, the act requires township commissioners to keep all public highways within the township “ effectually opened .... and clear of all impediments to easy and convenient passing and traveling.”
    Even if the words quoted from the act of 1899 are broad enough to confer the authority claimed by the township, in our opinion that power has been modified by the Act of April 19, 1905, P. L. 217, relating to automobiles and motor vehicles, which, inter alia, provides that no motor vehicle “shall be operated or driven upon any public street or public highway in any city, borough, county or township in this commonwealth until the operator shall have procured a license from the State Highway Department.” This language, it seems to us, grants permission to all persons having a state license to use and operate motor vehicles on the public roads of the state, subject only to the limitations contained in the act, which is throughout a regulating statute. This view is strengthened, at least so far as townships of the first class are concerned, by sec. 5, which fixes speed limits for both cities and townships, and further provides that “ in townships of the first class the commissioners thereof may by ordinance fix a rate speed of not less than one mile in six minutes in such sections of said townships as they may deem such rate necessary for public safety.” This clause clearly by implication permits motor vehicles to be operated upon the highways of townships of the first class as well as those of other municipalities, the only limitation being that township authorities may within the limits prescribed by the act control the speed at which such vehicles are operated. Beyond this they cannot go under the law as it is at present. This conclusion seems to us to be in line with Radnor Township v. Bell, 27 Pa. Superior Ct. 1, in which it was held that townships of the first class have power to fix a speed limit for automobiles within the limitation prescribed by the statute. While the legislature may by statute exclude automobiles from the public roads of the commonwealth, or confer the authority to do so within cities, boroughs or townships, it has not done so, and until such legislation is enacted there is no law that we know of that either prohibits or authorizes municipalities to prohibit the use of motor vehicles upon the public roads of the commonwealth.
    And now, January 28, 1909, exceptions sustained and judgment of the magistrate reversed, and restitution awarded.

      Error assigned was the judgment of the court.

      Walt&r Lyon, with him William A. Blakeley, district attorney, for appellant.

      J. E. MacCloskey, Jr., for appellee.
    October 25, 1909:
   Per Curiam,

We are not convinced that the commissioners of townships of the first class had no authority, at the time of the passage of the ordinance in question, to regulate the use of the highways by automobiles. But a majority of the judges who heard the case are of opinion that they had not power to prohibit the use of them upon a public highway of the township, and to that extent we adopt the opinion of the learned trial judge. Since this case was argued the case of Scranton v. Laurel Run Turnpike Co., 225 Pa. 82, has been reported. One of the points raised in that case was as to the discretionary power of a turnpike company to exclude automobiles from a turnpike situated very much as is the highway described in the present case and it was held that it had no power to do so. The case, while not controlling, tends to support the conclusion of the majority of this court as above stated.

The judgment is affirmed


text:
    Wenzel, Appellant, v. Thompson.
    Argued April 26, 1909.
    Appeal, No. 128, April T., 1908, by plaintiff, from order of C. P. No. 4, Allegheny Co., Fourth Term, 1908, No. 630, discharging rule to sell land in case of Richard Wenzel v. Thomas Thompson, Owner or Reputed Owners, and Wm. B. Rigby, Contractor.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Petition under sec. 38 of the mechanic’s lien Act of June 4, 1901, P. L. 431, for a rule to show cause why a structure should not be sold separate from lot and the lot exonerated from mechanics’ liens.

    The court granted a rule and subsequently without filing an opinion discharged the rule.

      Error assigned was the order of the court.

      W. A. Hudson, for appellant.

      S. Harvey Thompson, with him Donaldson Brothers, for appellee.
    October 25, 1909:

       Section 28 of the mechanic’s lien Act of June 4, 1901, P. L. 431, had been declared unconstitutional by the Supreme Court, in a case decided after the case of Wenzel v. Thompson was argued.

   Per Curiam,

The six judges who heard this case being equally divided in opinion, the judgment is affirmed.


author: Morrison, J.,

text:
    Logan v. The Pennsylvania Telephone Company, Appellant
    (No. 1).

      Trespass — Trespass quare clausum fregit — Landlord and tenant — Telephone companies.

    1. The owner of real estate which is in exclusive possession of a tenant, may maintain an action of trespass against a telephone company for an ■injury to his reversion such as the destruction of trees.
    2. In an action of trespass against a telephone company it cannot be alleged as a defense merely at the suggestion of counsel and without filing any plea of abatement, that subsequent to the institution of the suit the defendant company had merged in another company thereby terminating its corporate existence.
    Argued March 9, 1909.
    Appeal, No. 16, March T., 1909, by defendant, from judgment of C. P. York Co., Aug. T., 1907, No. 77, on verdict for plaintiff in case of William H. Logan v. The Pennsylvania Telephone Company.
    Before Rice, .P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for injuries to trees. Before Wanner, J. '
    At the trial it appeared that plaintiff owned 246 acres of land in Carroll township.. The northern boundary of the land was a public road along which the plaintiff had planted a row of ornamental trees. The defendant in erecting its telephone line trimmed and cut down many of these trees. At the time of the suit the land was in the exclusive possession of a tenant.
    Defendant presented these points:
    1. To enable the plaintiff to recover in this case he must show that at the time of the alleged trespass he had possession of the premises in dispute or the right to the immediate actual possession thereof. Answer: This point is refused as written. Under the undisputed facts of this case the plaintiff’s possession, or right of possession, was sufficient to maintain this action against a stranger out of possession for damage to his reversionary interest in the land. [1]

      2. The uncontradicted evidence being that others, to wit: Brandt and Haar, were at the time of the trespass complained of in actual possession of the premises under a lease from the plaintiff, the plaintiff cannot recover in this action of trespass, and the verdict must be for the defendant. Answer: This point is refused. [2]
    3. It appearing from the suggestion put upon the record by Mr. Keesey and Mr. Black, uncontradicted, that the Pennsylvania Telephone Company has been merged under the act of June 14, 1901, with the Bell Telephone Company of Philadelphia, and that the said merger was consummated under the provisions of said act on, to-wit: January 1,1908, and that upon said latter date the corporate existence of the said Pennsylvania Telephone Company terminated, this action has abated, and there can be no verdict of judgment against the defendant. Answer: This point is refused. [3]
    4. Under all the evidence the verdict of the jury must be for the defendant. Answer: This point is refused. [4]
    Verdict and judgment for plaintiff for $740. Defendant appealed.

      Errors assigned were (1-4) above instructions, quoting them.

      V. K. Keesey, with him J. S. Black, for appellant.
    The landlord may not maintain an action for trespass for injury to trees where a lessee of the land is in possession: Greber v. Kleckner, 2 Pa. 289; Wilkinson v. Connell, 158 Pa. 126; Clark v. Smith, 25 Pa. 137.
    • After dissolution of a corporation no action can be maintained against it, and pending actions abate unless there are statutory provisions to the contrary.

      James J. Logan and John N. Logan, with them Henry C. Niles, for appellee.
    A landlord whose property is in the possession of a tenant under a lease may maintain trespass against an intruder (even where the intrusion is with the consent of the tenant) for any injury affecting .the reversion, and may recover damages in such action commensurable to the injury. Trespass is his proper remedy. Before the act of 1887 his remedy would have been “case:” Devlin v. Snellenburg, 132 Pa. 186; Schnable v. Koehler, 28 Pa. 181; McIntire v. Westmoreland Coal Company, 118 Pa. 108; Ripka v. Sergeant, 7 W. & S. 9; Williams v. Esling, 4 Pa. 486; Robb v. Mann, 11 Pa. 300; Hennessy v. Anstock, 19 Pa. Superior Ct. 644; Hart v. Evans, 8 Pa. 13.
    Possession by a tenant as against a mere intruder without title, is in law possession by the landlord: Vanderslice v. Donner, 26 Pa. Superior Ct. 319; Schnable v. Koehler, 28 Pa. 181; McIntire v. Coal Co., 118 Pa. 108.
    Plaintiff need not be possessed pedis possessio: Hart v. Evans, 8 Pa. 13; Vanderslice v. Donner, 26 Pa. Superior Ct. 319; Devlin v. Snellenburg, 132 Pa. 186; Jackson v. Gunton, 26 Pa. Superior Ct. 203.
    It does not appear upon the record that the telephone company, the defendant, consolidated with the Bell Telephone Company of Philadelphia on January 1, 1908. The plaintiff admits nothing, denies everything and calls for proof. If such consolidation occurred it is not properly before the court and cannot be considered: Philadelphia, Wilmington & Baltimore R. R. Co. v. Conway et al., 112 Pa. 511; 1 Eastman’s Private Corporations in Pennsylvania (2d ed.), sec. 621; Baltimore & Susquehanna R. R. Co. v. Musselman, 2 Grant, 348.
    October 11, 1909:
   Opinion by

Morrison, J.,

There is nothing of serious importance raised by the first and second assignments of error. Prior to the procedure Act of May 25,1887, P. L. 271, there were three well-known forms of actions of trespass, viz.: vi et armis, quare clausum fregit and trespass on the case. By the second section of that act it is provided: “That, so far as relates to procedure, the distinctions heretofore existing between actions ex delicto be abolished, and that all damages, heretofore recoverable in trespass, trover or trespass on the case, shall hereafter be sued for and recovered in one form of action, to be called an action of trespass.”

Under this act and the numerous decisions thereunder, the plaintiff was entitled to recover in this action of trespass, under his declaration, which is a fairly concise statement of his cause of action, even if under the old law he could only have recovered in case. The declaration avers an injury to the reversion, and under the old law the plaintiff could maintain his action in case without the personal possession of the locus in quo: Duffield v. Rosenzweig, 144 Pa. 520. The declaration avers that the plaintiff was seized of the locus in quo before, at the time of and since the injuries complained of therein. This was sufficient to maintain trespass on the case, although the plaintiff was not in an actual pedis possessio of the premises: Hart v. Evans, 8 Pa. 13. Moreover, the plaintiff’s tenants were in possession, and we held in Vanderslice v. Donner, 26 Pa. Superior Ct. 319, that “As to the first, since possession by a tenant is in law possession by the landlord, it is always competent to show such possession when the question of possession by the landlord is involved.” Under this and other authorities that might be cited, we are not prepared to concede that trespass quare clausum fregit might not be maintained by the landlord, under the possession of his tenant, against a wrongdoer. But that question is not necessarily in the present case, as the plaintiff had the right to recover in case for the injury to the reversion, if he did not have possession.

In Devlin v. Snellenburg, 132 Pa. 186, it was held as stated in the syllabus: “One who paints an advertisement of his business upon the wall of a building belonging to another, at the time under lease to a tenant, is not relieved from liability to the landlord by the fact that the tenant consented thereto. Where the wall is injured, the injury is an injury to the reversion, and the owner thereof may have his action on the case (or the statutory action of trespass) therefor: Ripka v. Sergeant, 7 W. & S. 9; Schnable v. Koehler, 28 Pa. 181; McIntyre v. Coal Co., 118 Pa. 108.” See also Hennessy v. Anstock, 19 Pa. Superior Ct. 644. The first and second assignments are not sustained.

There is no merit in the third assignment. The defendant, by counsel, appeared and entered a general plea of not guilty, and the case was tried on the theory that the defendant was duly incorporated and had a corporate existence long after the alleged trespass and after the commencement of the suit. Moreover, the learned counsel for the defendant admit this both in their oral and printed argument. We find nothing in the record sustaining the suggestion made at the trial, “that the defendant corporation had been merged under the act of •June 14, 1901, with the Bell Telephone Company of Philadelphia, and that the said merger was consummated on January 1, 1908, and that upon said date the corporate existence of the defendant company terminated, this action abated, and there can be no judgment against the defendant.” This suit was commenced in July, 1907, long prior to the alleged merger, and it could not be abated, after plea entered, by the mere suggestion of counsel made at the trial. If a proper plea in abatement had been entered it would have been necessary to have sustained it by the best competent evidence of that fact, to wit, that the suit had abated. The defendant offered no testimony and we are at a loss to understand how it can be ■contended that the suggestion that the suit had abated was sustained. Upon this question the learned court below in disposing of the motion for a new trial, said: “This suggestion was only made of record by defendant’s counsel at the trial of the case, and no formal plea in abatement was previously filed, or any affidavit made by the defendant to the facts on which- the motion was based, and which were not formally admitted by the plaintiff. The question was not, therefore, properly before the court for a ruling on the question of whether or not the writ was abated in this case. But even if the defendant corporation had become merged in another as suggested, the Acts of assembly of May 29, 1901, P. L. 349, and of June 14, 1901, P. L. 566, would have preserved the right of the plaintiff to recover in this action for injuries to his property inflicted by the defendant.” Upon this record we are not convinced that the court was in error in the above conclusion.

The fourth assignment of error complains of the court for refusing the defendant’s fourth point that under all the evidence the verdict of the jury must be for the defendant. Under the evidence the case was for the jury and therefore this point could not have been affirmed.

The grounds of complaint raised by the fifth, sixth, seventh, eighth and ninth assignments will disappear when the plaintiff files a stipulation to the effect that the present recovery shall include the servitude imposed on his land by the erection and maintenance of the telephone line along the highway thereon. This will not injure the defendant because the learned court below instructed the jury not to include in the verdict any damages caused by the servitude imposed on the plaintiff's land.

We discover no reason why, by a slight amendment of the declaration,- the plaintiff might not .have recovered in this action all of the damages he suffered by the unlawful entry upon and use of his lands by the defendant corporation.

We find no serious error in this record and instead of convicting the court of error we are lead to the conclusion that great patience and good judgment were exhibited by the learned judge during the trial of the case and, we think, the verdict and judgment below does no injustice to the defendant.

We cannot sustain the tenth assignment as in our opinion the learned court properly submitted the plaintiff's evidence to the jury for consideration along with the other evidence.

In their oral and printed argument the counsel for plaintiff offered to file a stipulation to the effect that the verdict and judgment below will be accepted in full of all damages, including the servitude. If this is done it will not be necessary to make a formal amendment to the declaration.

In the following order it is assumed that the plaintiff will file the stipulation mentioned and, therefore, no alternative order is made. If, on notice from the prothonotary to the plaintiff, or his counsel of record, he shall within ten days file a stipulation as above indicated, then the prothonotary will enter, “The assignments of error are all overruled and the judgment is affirmed.”


text:
    Logan v. Pennsylvania Telephone Company, Appellant
    (No. 2).

      Trespass — Parties—Joint action — Tort.
    Where five persons own undivided interests in real estate at a time when a trespass is committed thereon, and subsequently three of the persons convey their interests to one of the other two owners, and thereafter a second trespass is committed upon the land, the five original owners cannot be joined as parties plaintiff in an action to recover damages for the second trespass.
    Argued March 9, 1909.
    Appeal, No. 17, March T., 1909, by defendant, from judgment of C. P. York Co., Aug. T., 1907, No. 76, on verdict for plaintiffs in case of William H. Logan et ah, Administrators of Abram Williams, deceased, v. Pennsylvania Telephone Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.'
    Trespass to recover damages for the destruction of trees.
    At the trial the plaintiff made the following offer:
    Mr. Niles: We propose to prove by this witness that in December, 1905, there came to the Logan place about .which we are speaking, seven men with a telephone outfit of ladders and other implements for use along a telephone line, and with a blueprint showing the line and its poles and wires, and proposed and proceeded to enter upon this land of the plaintiffs’ and cut and mutilate the trees along this line of fence and road that were left by the first cutting.
    For the purpose of sustaining the issue on the part of the plaintiffs and showing one of the trespasses complained of in the declaration.
    Mr. Black: It is objected to that in December, 1905, according to the evidence already introduced by the plaintiffs, John N. Logan, S. J. Beetem and J. F. Bailey, three of the plaintiffs, had no interest whatever in the property, they having according to the evidence, on September 25, 1905, made a deed of any interest that they owned before that time to William H. Logan.

      The Court: We think this is evidence. The plaintiffs’ statement is not particular as to dates, but it charges certain trespasses in the year 1905. It is true that previous to the date fixed in this offer there was a conveyance of the outstanding undivided one-third interest from the heirs of Mrs. Williams, deceased, to William H. Logan; but as all the parties who have had any interest in the premises during either of the two years in which the different trespasses are alleged to have been committed are plaintiffs of record, and the entire damage resulting from the cutting of these trees is to be recovered, if anything, we think the evidence admissible; because it is not any part of the present proceeding to apportion any damages that may be recovered. We therefore admit the evidence, and seal an exception for the defendant. [7]
    Verdict and judgment for plaintiffs for $500. Defendants appealed.

      Error assigned amongst others was (7) ruling on evidence, quoting the bill of exceptions.

      V. K. Keesey, with him J. S. Black, for appellant.
    A joint action in tort cannot be maintained when some of the plaintiffs are shown to have no right to recover: McDonald v. Simcox, 98 Pa. 619.

      James J. Logan and John N. Logan, with him Henry C. Niles, for appellees.
    The joinder of too many parties plaintiff does not injure the defendant: McIntire v. Westmoreland Coal Co., 118 Pa. 108; Ehret v. Schuylkill River, etc., R. R. Co., 151 Pa. 158.
    In the present case the alleged misjoinder, if any, is apparent from the pleadings and should have been raised by demurrer or plea in abatement. It is too late to raise it after pleading to the action. It was at best harmless error: Chapin v. Cambria Iron Co., 145 Pa. 478; Lauer v. Ketner, 162 Pa. 265; Seymour v. Hubert, 92 Pa. 499; Cheraw & Salisbury R. R. Co. v. Broadnax et al., 109 Pa. 432; Prevost v. Nicholls, 4 Yeates, 479; Payne v. Reese, 12 W. N. C. 97.

      October 11, 1909:
   Opinion by

Morrison, J.,

What has been said in our opinion this day filed in William PI. Logan v. this defendant, at No. 16, March Term, 1909, p. 644, ante, disposes of all of the questions raised in the assignments of error here, except the seventh. The question raised by that assignment is a serious one because the plaintiff’s declaration claims damages resulting from two distinct trespasses, the first, in 1902; and the second, in December, 1905.

It appears from the plaintiff’s evidence that in 1902 the locus in quo was owned by William PI. Logan, John N. Logan, S. J. Beetem, J. F. Bailey and Abram Williams, and that on September 25, 1905, John N. Logan, S. J. Beetem and J. F. Bailey, three of the plaintiffs, conveyed all of their interest in the premises to William H. Logan, and that the second trespass was not committed till December, 1905. This question was raised in the court below, on behalf of the defendant, on the plaintiffs’ own testimony. The learned court disposed of it in his opinion on the motion for a new. trial as follows: “The joinder of all possible parties in interest in this suit, worked no injury to the defendant under the facts and circumstances of this case, as damages for the injuries to their respective estates are recoverable by all the parties in interest, and the form of this verdict is a protection against future actions by any of the plaintiffs in the present case.”.

Conceding that for the trespass of 1905, William H. Logan may have been in position to maintain an action alone, is it reversible error for the court below to permit a recovery for that trespass in favor of all of the plaintiffs? In other words, is the joinder of too many plaintiffs, under the conceded facts in the present case, reversible error? All of the plaintiffs were interested in the locus in quo at the time of the first trespass, but what right had the three persons to join as plaintiffs in an action to recover damages for a trespass committed several months after they had conveyed their entire interest in the land to William H. Logan? In our opinion it cannot be said that in an action ex delicto the joining of persons as plaintiffs who have no interest in the subject-matter of the suit may not work an injury to the defendant. But be that, as it. may, it seems to be elementary law that only the persons whose legal rights have been affected, and who were legally interested in the property at the time the injury thereto was committed, should be named as plaintiff's in an action for a tort: 1 Chitty Plead., *60. In McDonald v. Simcox, 98 Pa. 619, Mr. Justice Mercur, speaking for the Supreme Court, said: “A joint action in tort cannot be maintained when some of the plaintiffs are shown to have no right to recover. It is elementary law in actions ex delicto, that if too many persons are made co-plaintiffs, the objection, if it appear on the record, may be taken advantage of either by demurrer, in arrest of judgment, or by writ of error; or if the objection do not appear on the face of the pleadings, it will be ground of nonsuit on the trial.” In the present case the plaintiff's clearly proved that three of them had disposed of their interest in the locus in quo some months before the second trespass was committed. This question was squarely raised by counsel for defendant and we think the learned court erred in permitting a recovery in this suit for the trespass of December, 1905. However, we see no reason why the plaintiffs may not amend their declaration and recover in this suit, hereafter, for the trespass of 1902, when as we understand the evidence all of the plaintiffs were interested in the locus in quo. It follows that if a recovery is to be had for the trespass of 1905, a new suit must be begun in the name of the proper persons.

The assignments of error are all overruled, except the seventh which is sustained, and the judgment is reversed with a venire facias de novo.


author: JOHNSON, Judge: DEL SOLE, Judge,

text:
    582 A.2d 1314
    Marlene L. SEDLITSKY, Appellant, v. James D. PARESO, M.D.
    Superior Court of Pennsylvania.
    Argued April 3, 1990.
    Filed June 29, 1990.
    Reargument Denied Aug. 15, 1990.

      Harry S. Cohen, Pittsburgh, for appellant.
    John W. Jordan, IV, Pittsburgh, for appellee.
    Before DEL SOLE, JOHNSON and FORD ELLIOTT, JJ.
   JOHNSON, Judge:

In a medical malpractice action, Marlene L. Sedlitsky appeals from the judgment entered on the jury verdict in favor of defendant James D. Pareso, M.D. On this appeal, we determine that once the plaintiff produces sufficient evidence to raise an inference of res ipsa loquitur, the plaintiff is entitled to have the jury instructed on this evidentiary rule even though the defendant has produced a quantity of contrary evidence. We also determine that where the plaintiff has provided the court with a written proposed point for charge which, although partially erroneous, sufficiently alerts the court that an important issue needs to be addressed in its jury charge, omission of an instruction on the important issue is grounds for reversal where the issue is not otherwise covered in the charge and the objecting party has been prejudiced. We reverse and remand for a new trial.

On July 16, 1985 Sedlitsky underwent surgery, performed by Pareso, a general surgeon, to remove one-half of her thyroid gland. After the surgery, Sedlitsky experienced hoarseness. Sedlitsky was examined by Dr. Eugene F. Paluso, who concluded that the hoarseness was a result of permanent vocal cord paralysis. On October 22, 1987, Sedlitsky commenced a negligence action against Pareso, alleging medical malpractice. After a jury trial, a verdict was returned in favor of Pareso. Sedlitsky filed a Motion for Post-Trial Relief which was denied by a trial court en banc panel.

On appeal Sedlitsky raises the following issue for our consideration: whether the trial court committed error by failing to instruct the jury as to res ipsa loquitur ? We agree and reverse on this basis.

Res ipsa loquitur is a short-hand expression for a rule of evidence which allows a jury to infer the existence of negligence and causation where the injury at issue is one that does not ordinarily occur in the absence of negligence. Gilbert v. Korvette, Inc., 457 Pa. 602, 327 A.2d 94 (1974). A plaintiff is entitled to a jury instruction on res ipsa loquitur where she has satisfied the requirements of the Restatement (Second) of Torts § 328 D. The Pennsylvania Supreme Court adopted this section of the restatement in Gilbert v. Korvette, Inc., supra. The restatement (Second) of Torts § 328 D states in relevant part:

(1) It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when
(a) the event is of a kind which ordinarily does not occur in the absence of negligence;
(b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and
(c) the indicated negligence is within the scope of the defendant’s duty to the plaintiff.

The Restatement (Second) of Torts, Comment e on Clause (a) of Subsection (1) elaborates upon the plaintiff’s burden to show the above elements. It provides in relevant part:

The plaintiff’s burden of proof ... requires him to produce evidence which will permit the conclusion that it is more likely than not that his injuries were caused by the defendant’s negligence. Where the probabilities are at best evenly divided between negligence and its absence, it becomes the duty of the court to direct the jury that there is no sufficient proof. The plaintiff need not, however, conclusively exclude all other possible explanations, and so prove his case beyond a reasonable doubt.... It is enough that the facts proved reasonably permit the conclusion that negligence is the more probable explanation. This conclusion is not for the court to draw, or to refuse to draw, in any case where either conclusion is reasonable; and even though the court would not itself find negligence, it must still leave the question to the jury if reasonable men might do so.

Restatement (Second) of Torts, Comment e on Clause (a) of Subsection (1), emphasis added; See also Hollywood Shop, Inc. v. Pennsylvania Gas and Water Co., 270 Pa.Super. 245, 249, 411 A.2d 509, 511 (1979). Where the plaintiff sustains his or her burden, the court must give an instruction on res ipsa loquitur, even if the defendant has produced a quantity of contrary evidence. See Halsband v. Union National Bank of Pittsburgh, 318 Pa.Super. 597, 465 A.2d 1014 (1983). An inference of res ipsa loquitur does not disappear in the face of contrary evidence. Packel and Poulin, Pennsylvania Evidence, § 306.6 at 95 (1987).

The trial court inappropriately cites Brophy v. Brizuela, 358 Pa.Super. 400, 517 A.2d 1293 (1986) for the proposition that a charge on res ipsa loquitur is not required where the plaintiffs evidence of res ipsa loquitur is contradicted by the defendant’s evidence. In Brophy, this court simply held that in a case alleging res ipsa loquitur, summary judgment is properly granted in favor of the defendant where the plaintiff has adduced no expert testimony to show that her injury is not one which commonly occurs in the absence of negligence and the uncontradicted evidence of record demonstrates that the injury could have occurred in the absence of negligence. Unlike Brophy, Sedlitsky did produce expert testimony to the effect that her injury does not commonly occur in the absence of negligence. Expert testimony is sufficient to establish the elements of section 328 D such that a res ipsa loquitur instruction is warranted even when contrary evidence has been produced by the defendant. See Hollywood Shop, Inc. v. Pennsylvania Gas and Water Co., 270 Pa.Super. at 250, 411 A.2d at 512.

On Sedlitsky’s behalf, Dr. Richard Bassin testified that Sedlitsky’s vocal cord paralysis occurred during the operation performed by Pareso and that during the operation Pareso must have somehow stretched the cord. He further testified that the injury suffered by Sedlitsky is not an injury which can occur in the absence of negligence unless unusual circumstances are present, that Sedlitsky’s operation did not evidence any unusual circumstances and that therefore Pareso must have acted negligently and breached the standard of care required of a doctor by failing to protect the vocal cords while operating.

Sedlitsky's evidence that this was an injury which will, in the normal case, occur only because of negligence was sufficient to satisfy the first prong of section 328 D. The inference that this injury does not commonly occur without negligence was not directly rebutted. Pareso’s expert, Dr. Charles Gray Wasting, only testified that this injury can occur without negligence. In Watson’s opinion, Sedlitsky’s injury was not the result of negligence but an unavoidable result of the surgery. He testified that Sedlitsky’s thyroid gland may have been temporarily attached to her vocal cord and therefore the cord may have suffered a stretch injury as the thyroid gland was properly rotated out of Sedlitsky’s neck. He stated that when the cord and gland are attached, a stretch injury is unavoidable.

Second, through expert testimony, Sedlitsky also provided sufficient evidence that no other responsible causes exist. This requirement primarily refers to the conduct of third persons. See Restatement (Second) of Torts § 328 D, Comment on Clause (b) of Subsection (1). The conduct of third persons is not a factor involved in this case. However, even though the facts essentially exclude the conduct of others, it is still proper in a medical malpractice case to determine whether any idiopathic factors could have been responsible for the harm here incurred. Compare Gallegor by Gallegor v. Felder, 329 Pa.Super. 204, 478 A.2d 34 (1984) where this court determined that the mere fact of injury during a surgical operation does not by itself establish a case for the application of res ipsa loquitur. The pivotal inquiry is whether the defendant is responsible for the injury at issue. Gilbert v. Korvette, Inc., 457 Pa. at 614, 327 A.2d at 101. This showing need not exclude all other possibilities. Rather, the evidence must reasonably permit a jury to conclude that “the negligence was, more probably than not, that of the defendant.” Carney v. Otis Elevator, 370 Pa.Super. 394, 399-400, 536 A.2d 804, 806 (1988).

During its closing argument, the defense conceded that “the most reasonable assumption is that it [the injury] is somehow connected to that surgery, ...” N.T. October 14, 1988 at 175-176. The question remaining for the jury was whether the injury could have occurred without negligence because the vocal cord was unusually adhered to the thyroid gland and was inadvertently stretched when the gland was properly rotated out of Sedlitsky’s neck. From the evidence, the jury could reasonably have concluded that negligence was responsible for Sedlitsky’s injury. Pareso’s post-operative report did not mention that the thyroid gland was attached to the vocal cord. If the jury believed that the point of attachment between the cord and gland would have been visible to Pareso, they could conclude that because no mention was made in the report that the cord and gland were attached, no unusual circumstances existed during the operation and therefore the injury was the result of negligence.

Third, it is within the scope of Pareso’s duty of care to protect his patient against preventable injuries which could reasonably occur during the performance of surgery. Accordingly, we find that Sedlitsky sufficiently satisfied the requisites of section 328 D and an instruction on res ipsa loquitur was warranted.

Pareso argues that even if a res ipsa loquitur instruction were proper, Sedlitsky failed to make a proper written request for such an instruction and therefore the trial court did not abuse its discretion by refusing Sedlitsky’s proposed point for charge.

While we find that Sedlitsky’s proposed point is erroneous in two respects, we do not find that these errors were such that the trial court was thereby relieved of the responsibility to give a res ipsa loquitur instruction. The first error in the proposed point for charge directed that the trial court instruct the jurors to consider general community knowledge in determining whether Pareso was negligent, even though this case clearly required expert testimony on this issue. The second error improperly requested that the court instruct the jury that Sedlitsky’s injuries could not occur in the absence of negligence when the evidence would permit the jury to draw a contrary conclusion.

“A trial judge is not bound to remould [sic] points for charge presented to him. If they are not strictly in accordance with the facts in evidence or the law of the case, he may refuse them.” Tamres v. Reed, 109 Pa.Super. 28, 31, 165 A. 538, 539 (1933). However, while the trial court could properly refuse Sedlitsky’s erroneous point, the trial court could not omit an instruction on res ipsa loquitur altogether. Although the proposed point was erroneous, it was sufficient to alert the trial judge to the need for an instruction regarding the evidentiary rule. Where the trial court omits from its charge an important evidentiary principle which was included in a proposed point for charge, even though the proposed point was erroneous, reversal of the judgment is proper if the objecting litigant has been prejudiced. Butler v. DeLuca, 329 Pa.Super. 383, 390, 478 A.2d 840, 844 (1984) citing McGowan v. Devonshire Hall Apartments, 278 Pa.Super. 229, 242, 420 A.2d 514, 520 (1980); See also Commonwealth v. Sisak, 436 Pa. 262, 269-270 n. 5, 259 A.2d 428, 432 n. 5 (1969).

We have reviewed the charge of the court and can not agree with Pareso’s alternative argument that Sedlitsky has suffered no prejudice because the principle of res ipsa loquitur was generally covered in the court’s instructions. In its charge, the trial court properly articulated the law of negligence, instructing the jury that they must find that Pareso acted negligently and that his negligence was a substantial cause of Sedlitsky’s injury. However, the court did not explain how negligence may be proved. Its entire discussion of circumstantial evidence is as follows:

In this case, you have heard what the law calls circumstantial evidence. Circumstantial evidence consists of proof of facts or circumstances from which it is reasonable to infer the existence of another fact.
For example, a man may be able to testify whether it was snowing at a particular time because he looked outside and saw the snow falling. This is direct evidence. It may be, however, that he did not actually see the snow coming down, but if he gets up one morning and looks and sees fresh snow where there was none the night before, he can testify to these facts, and the jury may infer that it snowed during the night. This is circumstantial evidence.

N.T., October 14, 1988 at 224.

The trial court’s discussion is insufficient to make a jury aware that if they find that Sedlitsky’s injury does not commonly occur in the absence of negligence, that no other responsible causes exist, and it was Pareso’s duty to protect against the occurrence of injury, they could infer, without more, negligence and causation. Such an evidentiary rule was particularly necessary here where Sedlitsky was unavoidably ignorant of the exact act which caused her injury.

We cannot discern from the record how the jury reached its verdict in favor of Pareso. The trial court gave the jury a general verdict slip which asked only which party prevailed and the amount of damages, if any. A jury poll shows that the verdict was not unanimous. The jury could justifiably have believed that the defendant had not acted negligently, as the vocal cord was adhered to the thyroid gland in a manner which was not visible and could not have been detected and therefore the injury could not have been prevented. Alternatively, the jury could also have determined that Sedlitsky simply did not present sufficient evidence of negligence or causation. In the latter case, Sedlitsky may very well have been prejudiced by the trial court’s failure to charge on res ipsa loquitur which is an evidentiary tool permitting a plaintiff to prove the elements of negligence and causation by circumstantial evidence. Accordingly, we reverse the judgment and remand for a new trial.

Judgment reversed. Case remanded. Jurisdiction relinquished.

DEL SOLE, J., files a dissenting opinion.

DEL SOLE, Judge,

dissenting.

I dissent from the conclusion of the Majority that the trial court erred in not charging the jury on the doctrine of res ipsa loquitur. I believe that the doctrine is not applicable in this case.

The Majority sets forth the doctrine as found in the Restatement of Torts. However, the doctrine of res ipsa applies only in those cases where there is no evidence of negligence on the part of the defendant. In this case, the Appellant introduced evidence at the trial to establish the negligence of the defendant. Specifically, the plaintiffs expert, Dr. Richard Bassin, gave his opinion that the standard of care of the Appellant was unacceptable. Dr. Bassin testified as follows:

Q. [By Mr. Cohen] Doctor, do you have an opinion with a reasonable degree of medical certainty, whether or not Dr. Pareso’s surgery fell below an acceptable and reasonable medical standard in this case?
A. Yes, I have an opinion.
Q. What is that opinion?
A. My opinion is that it fell below the standard of care.
Q. Why?
A. Because in performing surgery, the recurrent laryngeal nerve on the left side was traumatized, and the patient now has permanent paralysis of the vocal cord, and that is below the standard of care.
Q. Could this recurrent laryngeal nerve be traumatized or stretched, or cut, if the physician is utilizing a reasonable standard of care?
A. No, it can’t.
Q. What about if there are complications, like bleeding or something unforeseen?
A. In this case, there wasn’t anything unforeseen. You read the operative report, it says there wasn’t any excessive bleeding and there weren’t any problems, so the answer is no.
Q. Doctor, did you consider any other possible causes, reasonable possible causes, for Marlene’s permanently paralyzed vocal cord, other than an error by Dr. Pareso in this case?
A. I considered every possible cause, and the only cause that exists is that the recurrent laryngeal nerve was injured____
Q. Doctor, is vocal cord paralysis a risk of thyroid surgery?
A. Yes.
Q. Why do you say that?
A. Because if the surgeon injures the recurrent laryngeal nerve, you can get paralysis of the vocal cords.
Q. Can it be injured in any other way than an error by the physician?
A. No....
Q. Doctor, do you have an opinion within a reasonable degree of medical certainty whether or not Marlene’s permanent vocal cord paralysis was directly caused by Dr. Pareso’s surgical technique?
A. Yes, I have an opinion.
Q. What is that opinion?
A. That it was.

N.T. pp. 71-74.

Where, as here, the Appellant has introduced evidence of the defendant’s negligence, then the doctrine of res ipsa does not apply. The doctrine’s purpose is to provide evidence of negligence where none can be established, but the incident in question is one that could not occur without the defendant’s negligence. Here, the Appellant has clearly introduced evidence seeking to directly establish defendant’s negligence. As a result, in my judgment, the trial court did not err in denying the instruction. I would affirm the judgment.

      . Sedlitsky also presents the following questions for review:
      I. Whether the trial court committed error in permitting the defendant to refer, on direct examination, to surgical texts, operating manuals and surgical literature generally in support of his opinion testimony?
      II. Whether the trial court committed error in admitting opinion testimony of the defendant which violated pre-trial discovery rules, a specific pre-trial court order and went far beyond the offer of proof?
      III. Whether the trial court committed error in permitting plaintiff s fact witness, Dr. Eugene Paluso, to testify on cross-examination as to his opinions on issues beyond the scope of direct-examination?
      IV. Whether the trial court committed error in permitting defendant’s expert witness, Dr. Charles Watson, to testify as to opinions of other doctors?
      V. Whether the trial court committed error on voir dire in rejecting plaintiffs challenge "for cause” regarding a juror who had a personal relationship with the defendant; and allowing defendant’s challenge “for cause" regarding a juror who knew that his brother-in-law was paid a medical malpractice settlement by an insurance company?
      Because of our disposition of this appeal, we do not reach these remaining contentions.


author: WIEAND, Judge:

text:
    582 A.2d 1319
    COMMONWEALTH of Pennsylvania v. William Robert HARRIS, Appellant.
    Superior Court of Pennsylvania.
    Argued March 30, 1990.
    Filed Nov. 30, 1990.

      Sally A Frick, Pittsburgh, for appellant.
    Kemal A. Mericli, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before CIRILLO, President Judge, and WIEAND, McEWEN, MONTEMURO, BECK, KELLY, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.
   WIEAND, Judge:

William Robert Harris was charged by criminal information with committing the crimes of robbery in violation of 18 Pa.C.S. § 3701(a)(1)® and aggravated assault in violation of 18 Pa.C.S. § 2702(a)(1). At trial, Harris requested and received from the trial court a jury instruction on simple assault as defined at 18 Pa.C.S. § 2701(a)(1). The jury found Harris not guilty of robbery but guilty of simple assault. It was unable to reach a verdict on the charge of aggravated assault, and with respect thereto the trial court declared a mistrial. When the Commonwealth attempted to retry Harris on the aggravated assault charge, he filed a motion to dismiss on grounds of double jeopardy. This motion, following hearing, was denied by the trial court, and Harris appealed.

The Commonwealth’s trial evidence disclosed the following facts. On January 28, 1986, at or about 7:30 p.m., David Johnston was approached in the parking lot of Three Rivers Stadium, Pittsburgh, and asked for a quarter by a person later identified as appellant. When Johnston refused the request, appellant pointed a gun at Johnston and demanded all his money. Johnston again refused; whereupon, appellant pulled the trigger. The gun, however, did not fire. Johnston then ran toward his car, with appellant in pursuit. Appellant was able to overtake Johnston before he entered his car and beat him with the gun. As a result of this beating, Johnston sustained injuries which included four broken facial bones and required hospitalization for a period of ten (10) days.

As a general rule, a mistrial because of a jury’s inability to agree upon a verdict does not implicate principles of double jeopardy; and, therefore, a retrial is not barred. This was explained by the Supreme Court of the United States in Richardson v. United Stales, 468 U.S. 317, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984), as follows:

“The double-jeopardy provision of the Fifth Amendment ... does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment. Such a rule would create an insuperable obstacle to the administration of justice in many cases in which there is no semblance of the type of oppressive practices at which the double-jeopardy prohibition is aimed. There may be unforeseeable circumstances that arise during a trial making its completion impossible, such as the failure of a jury to agree on a verdict. In such event the purpose of law to protect society from those guilty of crimes frequently would be frustrated by denying courts power to put the defendant to trial again____ What has been said is enough to show that a defendant’s valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public’s interest in fair trials designed to end in just judgments.”

Id. at 324-325, 104 S.Ct. at 3085-3086, 82 L.Ed.2d at 250, quoting Wade v. Hunter, 336 U.S. 684, 688-689, 69 S.Ct. 834, 837, 93 L.Ed. 974, 978 (1949). See also: United States v. Perez, 9 Wheat 579, 6 L.Ed. 165 (1824); Commonwealth v. James, 506 Pa. 526, 531, 486 A.2d 376, 378-379 (1985); Commonwealth v. Mehmeti, 501 Pa. 589, 592, 462 A.2d 657, 659 (1983).

In Commonwealth v. McCane, 517 Pa. 489, 539 A.2d 340 (1988), the Pennsylvania Supreme Court held that principles of double jeopardy did not preclude reprosecution on a charge of homicide by vehicle while driving under the influence of alcohol after a jury had found the defendant guilty of driving under the influence but could not agree upon a verdict on the charge of homicide by vehicle while driving under the influence. The Court reasoned as follows:

The prohibition against double jeopardy protects against a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Generally, mistrial because of the inability of the jury to reach a verdict does not fall within these protections and, therefore, is not a bar to reprosecution. See Commonwealth v. James, 506 Pa. 526, 486 A.2d 376 (1985). In the instant case, retrial of the appellee is not a successive prosecution, inasmuch as the charges of homicide by vehicle while driving under the influence, and driving under the influence were brought against the appellee in the same proceeding. See Commonwealth v. Vincent, supra. Reprosecution of the appellee does not involve a second prosecution for the same offense after acquittal or a second prosecution for the same offense after conviction.

Id. 517 Pa. at 499-500, 539 A.2d at 345-346. See also: Commonwealth v. Vincent, 345 Pa.Super. 173, 497 A.2d 1360 (1985).

Principles of collateral estoppel, it has been held, are a part of the double jeopardy analysis. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); Commonwealth v. Crenshaw, 504 Pa. 33, 37, 470 A.2d 451, 453 (1983); Commonwealth v. Hude, 492 Pa. 600, 425 A.2d 313 (1980) (plurality opinion). Thus, in Commonwealth v. Zimmerman, 498 Pa. 112, 445 A.2d 92 (1981), the Court held that retrial on charges of third degree murder, voluntary manslaughter and involuntary manslaughter was barred after a jury had been unable to agree upon a verdict, because the same jury had acquitted the defendant on charges of first degree murder and simple assault. The Court reasoned that simple assault was a constituent element of all grades of homicide, and having been found not guilty of simple assault, the defendant could not thereafter be found guilty of any degree of homicide.

A similar analysis was applied by the Superior Court in Commonwealth v. Jones, 274 Pa.Super. 162, 418 A.2d 346 (1980). There, the defendant had been acquitted of rape by forcible compulsion and simple assault by causing or attempting to cause bodily injury. The jury was unable to reach a verdict, however, on charges of rape by threat of forcible compulsion and simple assault by putting another in fear of serious bodily injury through physical menace. The Court held that double jeopardy did not bar retrial of the charges on which the jury had been unable to agree. The Court said:

[W]e do not think principles of collateral estoppel, as set forth in Ashe v. Swenson and its progeny, must bar the second trial herein. Ashe established that once an accused has been acquitted, a state cannot prosecute him a second time for a related offense having a common issue of ultimate fact essential to conviction which the previous acquittal had determined in his favor. See, e.g., Commonwealth v. Peluso, 481 Pa. 641, 393 A.2d 344 (1978); Commonwealth v. Klinger, 264 Pa.Super. 21, 398 A.2d 1036 (1979). The Ashe prohibition may even apply where the jury returns a verdict of acquittal on some counts but is unable to agree on others if an issue of fact common to all counts was necessarily determined by the acquittal. See, e.g., U.S. ex rel. Rogers v. LaVallee, 517 F.2d 1330 (2 Cir., 1975); U.S. v. Davis, 369 F.2d 775 (4 Cir., 1966); U.S. v. Kenny, 236 F.2d 128 (3 Cir., 1956); U.S. ex rel. Triano v. Superior Court of N.J., 393 F.Supp. 1061 (D.N.J., 1975); U.S. v. Flowers, 255 F.Supp. 485 (E.D.N.C., 1966); Powers v. State, 285 Md. 269, 401 A.2d 1031 (1979). A determination that collateral estoppel does bar a retrial would be an exception to the general rule that an accused may be ret[ri]ed if the jury is unable to agree on a verdict in the first trial. Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). In the instant case, looking first to the crime of rape, we cannot say that the verdict of acquittal of count one necessarily foreclosed an ultimate fact necessary for conviction on count two____
Similarly, the legislative scheme provides that three different factual scenarios may each constitute the crime of simple assault and has, thereby, created three different offenses. § 2701. Paragraphs One and Three (counts four and six herein) each require proof of facts which the other does not, the former requiring bodily injury or an attempt to cause the same, while the latter embraces fear of imminent serious bodily injury by physical menace. An acquittal of count four does not necessarily determine any ultimate facts necessary for a conviction of count six since the facts underlying each count are distinct. We conclude, therefore, that collateral estoppel does not bar retrial.

Id. 274 Pa.Super. at 171-172, 418 A.2d at 350-351 (footnote omitted). See also: Commonwealth v. Pounds, 281 Pa.Super. 19, 421 A.2d 1126 (1980) (reprosecution for homicide by vehicle following hung jury was not barred by double jeopardy where defendant had also been convicted of driving under the influence of alcohol and summary offense of driving to the left of center).

The rule which emerges from the decided cases, therefore, is that retrial of charges on which a jury has been unable to agree is not barred unless the jury made findings on one or more other charges which must be interpreted as an acquittal of the offense for which the defendant is to be retried.

The aggravated assault charge, on which the jury was unable to reach a verdict in this case, is defined at 18 Pa.C.S. § 2702(a)(1) as follows:

(a) Offense defined.—A person is guilty of aggravated assault if he:
(1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life;

The offense of robbery, for which appellant was acquitted, is defined at 18 Pa.C.S. § 3701(a)(l)(i) as follows:

(1) A person is guilty of robbery if, in the course of committing a theft, he:
(i) inflicts serious bodily injury upon another;

After careful review, we conclude that the acquittal of robbery did not necessarily operate as an acquittal of aggravated assault.

The charge of robbery involved (a) the infliction of serious bodily injury (b) in the course of committing a theft. The crime of aggravated assault, however, does not require either a theft or the infliction of serious bodily injury. It is enough for conviction that appellant attempted to cause serious bodily injury to Johnston. The crime of aggravated assault also does not involve a theft. The jury in this case may have acquitted appellant of robbery because it concluded that the commission of a theft had not been proven. Because neither a theft nor the actual infliction of serious bodily injury was a necessary element of aggravated assault, a retrial for aggravated assault is not barred by principles of collateral estoppel.

Similarly, the jury’s finding that appellant was guilty of committing a simple assault does not preclude a retrial on the charge of aggravated assault. Simple assault is defined at 18 Pa.C.S. § 2701(a)(1) as follows:

(a) Offense defined.—A person is guilty of [simple] assault if he:
(1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another;

By its verdict, the jury found that appellant had caused or attempted to cause bodily injury. This finding does not necessarily prevent a finding by another jury that appellant also had caused or attempted to cause serious bodily injury.

We conclude, therefore, that a retrial of appellant on the charge of aggravated assault is not barred by principles of double jeopardy.

Appellant also contends that a retrial is barred by Pa.R.Crim.P. 1120(d). This rule provides as follows:

(d) If there are two or more counts in the information or indictment, the jury may report a verdict or verdicts with respect to those counts upon which it has agreed, and the judge shall receive and record all such verdicts. If the jury cannot agree with respect to all the counts in the information or indictment if those counts to which it has agreed operate as an acquittal of lesser or greater included offenses to which they cannot agree, these latter counts shall be dismissed. When the counts in the information or indictment upon which the jury cannot agree are not included offenses of the counts in the information or indictment upon which it has agreed, the defendant or defendants may be retried on those counts in the information or indictment, (emphasis added).

The rule was applied in Commonwealth v. Roberts, 484 Pa. 500, 399 A.2d 404 (1979), where a jury had been unable to agree upon a verdict on a charge of murder of the second degree after finding the defendant guilty of burglary and conspiracy but acquitting him of first degree murder, third degree murder, voluntary manslaughter and involuntary manslaughter. The Supreme Court held that the trial court had properly dismissed the second degree murder charge on the authority of Rule 1120(d), because involuntary manslaughter, voluntary manslaughter and third degree murder were lesser included offenses of second degree murder and because murder of the second degree was a lesser included offense of first degree murder. Justice Nix (now Chief Justice) wrote a strong dissent in which Justice Larsen joined. They reasoned:

The majority specifically relies upon the [second sentence of Rule 1120(d) ] to hold that the finding of not guilty of the remaining four counts of criminal homicide bars retrial of the count charging murder of the second degree. They reached this conclusion ignoring the Comment to Rule 1120 which states:
____ (d)____ serve[s] only to codify the procedure where conviction or acquittal of one offense operates as a bar to a later trial on a necessarily included offense, (emphasis added).
It is clear from the Comment’s reference to necessarily lesser included offenses that the purpose of the language relied upon in Rule 1120(d) was designed to avoid the successive prosecution prohibition of double jeopardy. See Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). Where the offense in question is a necessary constituent of the greater or where the lesser offenses are necessary elements of the offense in question, so that that offense cannot be found to exist without a finding of the lesser offenses also, and the greater offense cannot properly be found to have been committed without a finding that the offense in question has been established, then it is appropriate to bar reprosecution upon an acquittal of either the lesser or the greater offense. This is all the prohibition against successive prosecution requires, in this context and this is all that the language of Rule 1120(d) intended to provide. Yet today, the majority ignores the crucial requirement of the Rule, i.e., that it must be a necessary constituent offense, thereby completely distorting the Rule and reaching a result which is inexplicable.

Id. 484 Pa. at 507-508, 399 A.2d at 407-408 (Nix, J., dissenting) (footnotes omitted).

In Commonwealth v. McCane, supra, the Supreme Court interpreted Rule 1120(d) in a manner similar to that suggested in the dissenting opinion in Roberts. There, the issue was whether the defendant’s conviction for driving while under the influence of a controlled substance operated under Rule 1120(d) as an acquittal of homicide by vehicle while under the influence—a charge on which the jury could not agree. In an opinion written by Justice Larsen, the Court held:

[T]he provisions of Rule 1120(d) do not bar the retrial of appellee on the charge of homicide by vehicle while driving under the influence following a mistrial declared on that charge because of a deadlocked jury. The comment to Rule 1120 points out that:
Sections (c), (d) and (e) serve only to codify the procedure where conviction or acquittal of one offense operates as a bar to a later trial on a necessarily included offense.
The purpose of Rule 1120(d) and specifically the language relied upon by the lower court and the appellee is to prevent “successive prosecutions” in violation of the prohibition against double jeopardy. A mistrial because a jury is unable to reach a verdict is the classic case where double jeopardy considerations do not prevent a retrial. United States v. Perez, 9 Wheat 579, 6 L.Ed. 165 (1824).

Id. 517 Pa. at 497, 539 A.2d at 344. See also: Commonwealth v. Vincent, supra.

Under McCane, retrial on a charge upon which a jury could not reach a verdict will be barred only where the same jury has also returned verdicts on lesser or greater offenses which necessarily operate as an acquittal of the charge on which the jury could not agree. Rule 1120(d), the Court held, is merely a codification of the double jeopardy bar against successive prosecutions for the same offense. This analysis is in clear conflict with the earlier decision of a majority of the Court in Roberts and can only be interpreted as a repudiation thereof. Compare: Commonwealth v. Kemmerer, 381 Pa.Super. 533, 554 A.2d 514 (1989), allocatur granted, 522 Pa. 574, 559 A.2d 35 (1989). But see the Dissenting Opinion by Wieand, J.

We conclude that the McCane analysis is the better view and that Roberts has been overruled sub silentio. When Rule 1120(d) is applied consistently with McCane, we find that the analysis in the instant case must necessarily be the same as that employed to determine whether retrial on the charge of aggravated assault is barred by principles of double jeopardy. Because retrial is not barred by principles of double jeopardy, it also is not barred by Rule 1120(d). Neither appellant’s acquittal of robbery nor his conviction of simple assault necessarily requires a finding that he is not guilty of aggravated assault.

Finally, appellant’s retrial is not barred by the provisions of 18 Pa.C.S. § 110. This section of the Crimes Code “applies only to successive prosecutions, not to the distinct problem of retrial following a deadlocked jury.” Commonwealth v. Vincent, supra 345 Pa.Super. at 177, 497 A.2d at 1362 (footnote omitted). See also: Commonwealth v. McCane, supra 517 Pa. at 497-498, 539 A.2d at 344-345. Section 110 “applies only where the prosecution is attempting to bring charges to trial on a new offense which follows a previous trial for the same conduct.” Commonwealth v. Pounds, supra 281 Pa.Super. at 22, 421 A.2d at 1127. It was designed to limit successive prosecutions where all charges arising out of the same criminal transaction could have been brought in a single prosecution. See: Commonwealth v. Holmes, 480 Pa. 536, 391 A.2d 1015 (1978); Com monwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973), vacated and remanded, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), on remand, 455 Pa. 622, 314 A.2d 854 (1974), cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974). Instantly, the Commonwealth complied with Section 110 by bringing all charges against appellant in a single proceeding. A retrial on the charge of aggravated assault because of a deadlocked jury, therefore, is not precluded. See: Commonwealth v. McCane, supra; Commonwealth v. Vincent, supra; Commonwealth v. Pounds, supra.

It is apparent, for the foregoing reasons, that a retrial of appellant on a charge of aggravated assault is not barred by statute, rule of court, or constitutional safeguard. The order of the trial court, therefore, must be affirmed.

Order affirmed.

      . The reverse is not true. If the jury had found appellant not guilty of simple assault, principles of collateral estoppel would have barred a retrial for aggravated assault. See: Commonwealth v. Zimmerman, supra.

      . Bodily injury is defined at 18 Pa.C.S. § 2301 as an “[¡Impairment of physical condition or substantial pain.”

      . Serious bodily injury is defined at 18 Pa.C.S. § 2301 as "[b]odily injury which creates a substantial risk of death or which causes serious, permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ."

      . This section of the Crimes Code is as follows:
      § 110. When prosecution barred by former prosecution for different offense
      Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:
      (1) The former prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for the same offense) and the subsequent prosecution is for:
      (i) any offense of which the defendant could have been convicted on the first prosecution;
      (ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single court unless the court ordered a separate trial of the charge of such offense; or
      (iii) the same conduct, unless:
      (A) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil; or
      (B) the second offense was not consummated when the former trial began.
      (2) The former prosecution was terminated, after the indictment was found, by an acquittal or by a final order or judgment for the defendant which has not been set aside, reversed or vacated and which acquittal, final order or judgment necessarily required a determination inconsistent with a fact which must be established for conviction of the second offense.
      (3) The former prosecution was improperly terminated, as improper termination is defined in section 109 of this title (relating to when prosecution barred by former prosecution for the same offense) and the subsequent prosecution is for an offense of which the defendant could have been convicted had the former prosecution not been improperly terminated.