I am constrained to dissent from the opinion of the majority of the court, because, in my judgment, it would be establishing a dangerous precedent in practice.
Plaintiff's action was to recover the damages it had sustained by defendant's failure to deliver goods entrusted to it for carriage. While in form, ex contractu, it was essentially ex delicto in character. The gist of the action was the negligence of defendant.
When the Practice Act of 1887 was in force it was decided in Corry v. Pa. R.R. Co., 194 Pa. 516, that such an action did not require the filing of an affidavit of defense, although the Act of 1887 (P.L. 272) specifically made it the duty of a defendant in an action of assumpsit to file such affidavit; the court holding that this provision was limited to such actions as were founded on *Page 170 contract alone and did not include cases in which the cause of action was ex delicto or of a mixed character of contract and tort.
The Practice Act of 1915 (P.L. 483) makes a clear distinction, as respects affidavits of defense, between actions of assumpsit and actions of trespass. In the latter, judgment cannot be taken in default of an affidavit of defense or for want of a sufficient affidavit of defense: Smith v. Wertheimer, 76 Pa. Super. 210; Stern v. Lancaster, 79 Pa. Super. 27; and averments in the plaintiff's statement as to damages claimed "need not be answered or denied, but shall be deemed in all cases to be put in issue unless expressly admitted" (section 13).
In Parry v. First Nat. Bank of Lansford, 270 Pa. 556, which was an action of assumpsit based, in part, upon defendant's tort, the Supreme Court, speaking through Chief Justice MOSCHZISKER, said in reference to Corry v. Pa. R.R. Co., supra: "The case last cited was, of course, decided prior to the Practice Act of 1915, but the decision there made is an authority here, because, while the recent statute provides, to a limited extent, for affidavits of defense in actions of tort, there is nothing in it which requires such an affidavit to meet plaintiff's averments in the present case, particularly so far as they relate to the description of the tort itself or the damages suffered," p. 562; and, "That part of plaintiff's claim which falls strictly within the category of assumpsit was sufficiently met by the affidavit of defense, and the remaining parts of the claim, sounding in tort, demand no pleaded reply" (p. 563).
In the present case the plaintiff's statement, in its opening, claimed the sum of $900 with interest from March 11, 1921, and in its closing paragraph alleged: "Wherefore plaintiff brings this suit to recover the sum of $900 with interest as aforesaid." That was all it said on the subject of damages. There was no averment that the goods delivered to defendant for carriage were of the value of $900, or any statement as to their value. *Page 171
At the trial, plaintiff's entire proof consisted in offering in evidence paragraphs one and two of its statement, which were admitted in the affidavit of defense. Paragraph (1) averred that defendant was a carrier of goods; paragraph (2) that plaintiff delivered to defendant at Philadelphia, on March 11, 1921, three cases of lithographic stones which defendant contracted to carry and deliver to a certain consignee in New York.
Plaintiff did not even offer any proof that defendant had failed to deliver the goods thus received by it for carriage. On this state of the evidence defendant was entitled to the nonsuit which it asked. This being denied, defendant produced evidence, on its own behalf, which justified the submission of the case to the jury on the question of negligence. But not an iota of testimony, of any kind, was produced as to the value of the goods lost or the plaintiff's damages.
Yet the trial judge in his charge took it for granted that the amount claimed in the statement was in evidence under the pleadings, for he said to the jury: "The plaintiff brings this action to recover from the defendant the value of certain merchandise which was admittedly shipped by the plaintiff to the City of New York, the value being placed at $900."
The plaintiff's averment as to the amount of his claim was not in evidence and would not have been admissible if it had been offered. If there had been an averment in the statement as to the value of the goods and it had not been denied in the affidavit, the paragraph of the statement containing it would have to be offered in evidence before it could be considered by the jury: Buehler v. U.S. Fashion Plate, 269 Pa. 428; Farbo v. Caskey,272 Pa. 573; Bessemer Lake Erie R.R. Co. v. Ford Collieries Co.,273 Pa. 166, 170; Karnofsky Bros. v. D. H. Co., 274 Pa. 272,276; Brown v. Q.C. Cab Co., 274 Pa. 289, 291; Delmont Gas Coal Co. v. Diamond Alkali Co., 275 Pa. 535, 541; though, in my opinion, it would not have been admissible to fix their value, for the gist of *Page 172 the action being negligence and therefore ex delicto in character, the defendant was not bound to answer averments as to damages: Parry v. First Nat. Bank of Lansford, supra.
In my opinion, the error was too flagrant and too basic to support this judgment and a new trial should have been awarded.
Judges ORLADY and PORTER join in this dissent.