Corry v. Pennsylvania Railroad

Opinion by William W. Porter, J., The act of May 25, 1887, provides that the statement or demand in the action of assumpsit “shallbe accompanied by copies of all notes, contracts, book entries or a particular reference to the records of any court, within the county in which the action is brought, if any, upon which the plaintiff’s claim is founded.” It provides that after service of the statement is made as required, “it shall be the duty of the defendant in the action of' assumpsit to file an affidavit of defense on or before return day; ” and that. “ judgment may be moved for want of an affidavit of defense, or for want of a sufficient affidavit, for the whole or part of the plaintiff’s claim, as the case may be, in accordance with the present practice in actions in debt and assumpsit.” Eliminating the last twelve words, there can be no doubt that the purpose is to require the defendant to file an affidavit of defense in every action of assumpsit under the act. When, however, the act refers to the motion for judgment, it requires it to be made “ in accordance with the present practice in actions of debt and assumpsit.” The history of the affidavit of defense law is well traced in Abeles v. Powell, 6 Pa. Superior Ct. 123, by our Brother Smith. It need not be repeated here. It is sufficient to say that the Act of March 28,1835, P. L. 88, was in force at the time of the passage of the act of 1887, and was in large measure the basis of the then practice. The act of 1835 required that “ in all actions on bills, notes, bonds and other instruments for the payment of money, and for the recovery of book debts, .... it shall be lawful for the plaintiff to enter judgment by default, .... unless the defendant shall previously have filed an affidavit of defense, stating therein the nature and character of the same; provided that, in all such cases, no judgment shall be entered .... unless the said plaintiff shall .... have filed, in the office of the prothonotary, a copy of the instrument of writing, book entries, record or claim on which action has been brought.” The act is thus referred to by the present chief justice of the [238] Supreme Court: “The statute is undoubtedly remedial, — intended to prevent vexatious and useless delay and expense in the administration of justice, and' thus facilitate the collection of pecuniary claims, founded on written instruments, in cases where the defendant has no meritorious or available defense: ” Vulcanite Paving Co. v. Philadelphia, 115 Pa. 280. The opinion in this case was delivered March 14, 1887, about three months previous to the approval of the new procedure act. The practice then was to enter judgment in suits “ founded on written instruments,” and this by virtue of legislation. But the act of 1887 clearly supersedes the act of 1885. The former requires an affidavit in every action of assumpsit. It requires copies of written instruments, if any, to accompany the statement. It does not provide that where there are no written instruments, no affidavit shall be required. The reference to the “present practice in debt and assumpsit” cannot work a construction of the body and purpose of the act at variance with its expressed meaning. The act of 1887 does not contemplate a practice required by the act of 1835. See Newbold v. Pennock, 154 Pa. 591. We therefore conclude that the obligation to file a sufficient affidavit of defense in the action of assumpsit, is fixed by the act of 1887, and that the practice or method of procedure to impose the penalty for default or insufficiency of affidavit, follows that obtaining in the several courts at the time of the passage of the act of 1887, in actions of debt and assumpsit. This is practically accepted practice, but it should follow, therefrom, that in all actions, properly brought in statutory assumpsit, an affidavit of defense must be furnished. This is not the invariable rule. In Osborne v. The Bank, 154 Pa. 134, it is held that where the action is for the recovery of a penalty, no affidavit of defense is required. One of the reasons given is because the proceeding is “ substantially an action ex. delicto.” See also Bartoe v. Guckert, 158 Pa. 124. Thus the form may properly be assumpsit, but if the substance of the action is in fact tort, the defendant is absolved from filing an affidavit. The case of The Bank v. Gardiner, 171 Pa. 267, seems to be in conflict with this exception, but the point was not raised in that case. No authority need be cited for the proposition that a carrier [239] may be sued in Pennsylvania in assumpsit for breach of contract, or in tort for violation of public duty, at the election of the plaintiff. In the statement of claim before us, the plaintiff has set up a contract, and the action is in form assumpsit for breach: Smith v. Seward, 3 Pa. 342. The use of the words “negligent” and “negligently,” applied to the conduct of the defendant in the statement of claim, does not convert the action into one ex delicto. These terms may be used in setting up a breach of contract as aptly as in alleging the violation of public duty: Menner v. Canal Co., 7 Pa. Superior Ct. 135. In view of the exception made by the Supreme Court, and noted above, we may inquire upon what a suit against a carrier is primarily founded. There has been difference of opinion on this question, but the better view seems to be that the foundation of the right of action is in contract. The relation between a carrier and his employer is one of bailment. The gist of the action against the carrier is found in his undertaking. It is his implied promise that originally binds bim to the performance of the carriage. Superimposed is the duty fixed upon him by the policy of the law, obliging him to carry “ against all events but acts of God and of the enemies of the king.” See judgment of Lord Holt, in Coggs v. Bernard, 1 Smith’s Leading Cases, *199. But if the two forms of action, at the option of the plaintiff, rise simultaneously, and neither can be said to be the foundation or precursor of the other, the' election by the plaintiff of his form of action, will determine the character of the obligation of the defendant for breach of which, the plaintiff sues. The difficulty in determining whether the fundamental right of action is on the contract or on the tort, is referred to in Porter v. Hildebrand, 14 Pa. 129. The citations contained in the opinion of Mr. Justice Bell show the contrariety of judicial opinion. From these authorities he, however, draws the following conclusion : “ These, after referring to the right of the plaintiff to bring either assumpsit on the implied contract, or case for negligence, fully establish that the form of action selected is to be governed by the rules applicable to it in all other instances.” See also McCall v. Forsyth, 4 W. & S. 179. This must mean that the law of Pennsylvania is that if the plaintiff, by his statement of promise and consideration, clearly [240] indicates his election to sue on tbe implied contract, in assumpsit, bis action shall proceed as in other actions of assumpsit. This being tbe law, it follows that he is entitled, in such case, to require from tbe defendant an affidavit of defense, provided, that tbe damages for tbe breach of contract are, by tbe statement of claim, made sufficiently specific to enable the court to enter judgment on default of affidavit, or on failure to file a sufficient affidavit of defense. Tbe assignments of error are sustained; tbe judgment of the court below is reversed; and tbe record is remitted with directions to tbe court below to enter judgment against tbe defendant for such sum as to right and justice may belong, unless other legal or equitable cause be shown to tbe said court, why such judgment should not be so entered.