Commonwealth v. Root

170 A.2d 310, 403 Pa. 571, 82 A.L.R. 2d 452, 1961 Pa. LEXIS 504

• Court: Supreme Court of Pennsylvania
• Decided: May 2, 1961
• Docket: Appeal, 57
• Status: Published

Opinions

Opinion by

Mb. Chief Justice Jones,

•The appellant was found guilty of involuntary manslaughter for the death of his competitor in the course of an automobile race between them on a highway. The trial court overruled the defendant’s demurrer to the Commonwealth’s evidence and, after verdict, denied his motion in arrest of judgment. On appeal from the judgment of sentence entered on the jury’s verdict, the Superior Court affirmed. We granted allocatur because of the important question present as to whether the defendant’s unlawful and reckless conduct was a sufficiently direct cause of the death to warrant his being charged with criminal homicide.

The testimony, which is uncontradicted in material part, discloses that, on the night of the fatal accident, the defendant accepted the deceased’s challenge to engage in an automobile race; that the racing took place on a rural 3-lane highway; that the night was clear and dry, and traffic light; that the speed limit on the highway was 50 miles per hour; that, immediately pri- or to the accident, the two automobiles were being operated at varying speeds of from 70 to 90 miles per hour; that the accident occurred in a no-passing zone on the approach to a bridge where the highway narrowed to two directionally-opposite lanes; that, at the time of the accident, the defendant was in the lead and was proceeding in his right-hand lane of travel; that the deceased, in an attempt to pass the defendant’s automobile, when a truck was closely approaching from the opposite direction, swerved his car to the left, crossed the highway’s white dividing line and drove his automobile on the wrong side of the highway head-on into the oncoming truck with resultant fatal effect to himself.

This evidence would of course amply support a conviction of the defendant for speeding, reckless driving and, perhaps, other violations of The Vehicle Code of May 1, 1929, P. L. 905, as amended. In fact, it may be noted, in passing, that the Act of January 8, 1960, P. L. (1959) 2118, §3, 75 PS §1041, amending The Vehicle Code of April 29, 1959, P. L. 58, 75 PS §101 et seq., makes automobile racing on a highway an independent crime punishable by fine or imprisonment or both up to $500 and three years in jail. As the highway racing in the instant case occurred prior to the enactment of the Act of 1960, cit. supra, that statute is, of course, not presently applicable. In any event, unlawful or reckless conduct is only one ingredient of the crime of involuntary manslaughter. Another essential and distinctly separate element of the crime is that the unlawful or reckless conduct charged to the defendant was the direct cause of the death in issue. The first ingredient is obviously present in this case but, just as plainly, the second is not.

While precedent is to be found for application of the tort law concept of “proximate cause” in fixing responsibility for criminal homicide, the want of any rational basis for its use in determining criminal liability can no longer be properly disregarded. When proximate cause was first borrowed from the field of tort law and applied to homicide prosecutions in Pennsylvania, the concept connoted a much more direct causal relation in producing the alleged culpable result than it does today. Proximate cause, as an essential element of a tort founded in negligence, has undergone in recent times, and is still undergoing, a marked extension. More specifically, this area of civil law has been progressively liberalized in favor of claims for damages for personal injuries to which careless conduct of others can in some way be associated. To persist in applying the tort liability concept of proximate cause to prosecutions for criminal homicide after the marked expansion of civil liability of defendants in tort actions for negligence would be to extend possible criminal liability to persons chargeable with unlawful or reckless conduct in circumstances not generally considered to present the likelihood of a resultant death.

In this very case (Commonwealth v. Root, 191 Pa. Superior Ct. 238, 245, 156 A. 2d 895) the Superior Court mistakenly opined that “The concept of proximate cause as applied in tort eases is applicable to similar problems of causation in criminal cases. Commonwealth v. Almeida, 362 Pa. 596, 603, 611, 68 A. 2d 595 (1949).” It is indeed strange that the Almeida case should have been cited as authority for the above quoted statement; the rationale of the Almeida case was flatly rejected by this Court in Commonwealth v. Redline, 391 Pa. 486, 504-505, 137 A. 2d 472 (1958), where we held that the tort liability concept of proximate cause is not a proper criterion of causation in a criminal homicide case. True enough, Commonwealth v. Redline was a murder case, but the distinction between murder and involuntary manslaughter does not rest upon a differentiation in causation; it lies in the state of mind of the offender. If one kills with malice aforethought, he is chargeable with murder; and if death, though unintentional, results directly from his unlawful or reckless conduct, he is chargeable with involuntary manslaughter. In either event, the accused is not guilty unless his conduct was a cause of death sufficiently direct as to meet the requirements of the criminal, and not the tort, law.

The instant case is one of first impression in this State; and our research has not disclosed a single instance where a district attorney has ever before attempted to prosecute for involuntary manslaughter on facts similar ¡to those established by the record now before us. The closest case, factually, would seem to be Commonwealth v. Levin, 184 Pa. Superior Ct. 436, 135 A. 2d 764 (1957), which affirmed the defendant’s conviction of involuntary manslaughter. In the Levin case two cars were racing on the streets of Philadelphia at speeds estimated at from 85 to 95 miles per hour. The defendant’s car, in the left-hand lane, was racing alongside of the car in which the deceased was a passenger when the defendant turned his automobile sharply to the right in front of the other car, thereby causing the driver of the latter car to lose control and smash into a tree, the passenger being thrown to the road and killed as a result of the impact. It is readily apparent that the elements of causation in the Levin case were fundamentally different from those in the present case. Levin’s act of cutting his automobile sharply in front of the car in which the deceased was riding directly forced that car off of the road and into the tree. The defendant’s reckless and unlawful maneuver was the direct cause of the crucial fatality. In the instant case, the defendant’s conduct was not even remotely comparable. Here, the action of the deceased driver in recklessly and suicidally swerving his car to the left lane of a 2-lane highway into the path of an oncoming truck was not forced upon him by any act of the defendant; it was done by the deceased and by him alone, who thus directly brought about his own demise. The Levin case was properly decided but it cannot, by any ratiocination, be utilized to justify a conviction in the present case.

Legal theory which makes guilt or innocence of criminal homicide depend upon such accidental and fortuitous circumstances as are now embraced by modern tort law’s encompassing concept of proximate cause is too harsh to be just. A few illustrations should suffice to so demonstrate.

In Mautino v. Piercedale Supply Co., 338 Pa. 435, 13 A. 2d 51 (1940), — a civil action for damages — we held that where a man sold a cartridge to a person under 16 years of age in violation of a State statute and the recipient subsequently procured a gun from which he fired the-cartridge injuring someone, the-injury was proximately caused by the act of the man who sold the cartridge to the underage person. If proximate cause were the test for criminal liability and the injury to the plaintiff in the Mcmtino case had been fatal, the man who sold the bullet to the underage person (even though the boy had the appearance of an adult) would have been guilty of involuntary manslaughter, for Ms unlawful act would, according to the tort law standard, have been the proximate cause of the death.

In Schelin v. Goldberg, 188 Pa. Superior Ct. 341, 146 A. 2d 648 (1958), it was held that the plaintiff, who was injux*ed in a fight, could recover in tort against the defendants, the owners of a taproom who prior to the fight had unlawfully served the plaintiff drinks wMle he was in a visibly intoxicated condition, the unlawful action of the defendants -being held to be the proximate cause of the plaintiffs injuries. Here,-again, if proximate cause were the test for criminal liability and the plaintiff had been fatally injured in the fight, the taproom owners would have been guilty of involuntary manslaughter, for their unlawful act would have been no less the proximate cause of death.

In Marchl v. Dowling & Company, 157 Pa. Superior Ct. 91, 41 A. 2d 427 (1945), it was held that where a truck driver had double parked his truck and the minor plaintiff was struck by a passing car when she walked around the double parked truck, the truck driver’s employer was held liable in tort for the plaintiff’s injuries on the ground that the truck driver’s act of double parking, which violated both a State statute and a city ordinance, was the proximate cause of the plaintiff’s injuries. Here, also, if proximate cause were the test for criminal liability and the plaintiff’s injuries had been fatal, the truck driver would have been guilty of involuntary manslaughter since -his unlawful act would have been the proximate cause of the death for which his employer was held liable in damages under respondeat superior. To be guilty of involuntary manslaughter for double parking would, of course, be unthinkable, yet if proximate cause were to determine criminal liability, such a result would indeed be a possibility.

Even if the tort liability concept of proximate cause were to be deemed applicable, the defendant’s conviction of involuntary manslaughter in the instant case could not be sustained under the evidence. The operative effect of a supervening cause would have to be taken into consideration: Commonwealth v. Redline, supra, at p. 505. But, the trial judge refused the defendant’s point for charge to such effect and erroneously instructed the jury that “negligence or want of care on the part of . . . [the deceased] is no defense to the criminal responsibility of the defendant. . . .”

The Superior Court, in affirming the defendant’s conviction in this ease, approved the charge above mentioned, despite a number of decisions in involuntary manslaughter cases holding that the conduct of the deceased victim must be considered in order to determine whether the defendant’s reckless acts were the proximate (i.e., sufficiently direct) cause of his death. See Commonwealth v. Amecca, 160 Pa. Superior Ct. 257, 260-263, 50 A. 2d 725 (1947); Commonwealth v. Hatch, 149 Pa. Superior Ct. 289, 292, 27 A. 2d 742 (1942); Commonwealth v. Aurick, 138 Pa. Superior Ct. 180, 187, 10 A. 2d 22 (1939). The Superior Court dispensed with this decisional authority (see Commonwealth v. Root, supra, at p. 252) by expressly overruling Commonwealth v. Amecca, supra, and by impliedly overruling each of the other cases immediately above cited. It did so on the ground that there can be more than one proximate cause of death. The point is wholly irrelevant. Of course there can be more than one proximate cause of death just as there can also be more than one direct cause of death. For example, in the so-called “shield” cases where a felon interposes the person of an innocent victim between himself and a pursuing officer, if the officer should fire his gun at the felon to prevent his escape and fatally wound the person used as a shield, the different acts of the policeman and the felon would each be a direct cause of the victim’s death.

If the tort liability concept of proximate cause were to be applied in a criminal homicide prosecution, then the conduct of the person whose death is the basis of the indictment would have to be considered, not to prove that it was merely an additional proximate cause of the death, but to determine, under fundamental and long recognized law applicable to proximate cause, whether the subsequent wrongful act superseded the original conduct chargeable to the defendant. If it did in fact supervene, then the original act is so insulated from the ensuing death as not to be its proximate cause.

Under the uncontradicted evidence in this case, the conduct of the defendant was not the proximate cause of the decedent’s death as a matter of law. In Kline v. Moyer and Albert, 325 Pa. 357, 364, 191 Atl. 43 (1937), the rule is stated as follows: “Where a second actor has become aware of the existence of a potential danger created by the negligence of an original tortfeasor, and thereafter, by an independent act of negligence, brings about an accident, the first tort-feasor is relieved of liability, because the condition created by him was merely a circumstance of the accident and not its proximate cause.” See, in accord, DeLuca v. Manchester Laundry and Dry Cleaning Company, Inc., 380 Pa. 484, 491, 112 A. 2d 372 (1955); Jeloszewski v. Sloan, 375 Pa. 360, 365, 100 A. 2d 480 (1953); Johnson v. Angretti, 364 Pa. 602, 606-607, 73 A. 2d 666 (1950).

In the case last above cited, while Angretti was driving his truck eastward along a highway, a bus, traveling in the same direction in front of him, stopped to take on a passenger. Angretti swerved his truck to the left into the lane of oncoming traffic in an attempt to pass the bus but collided with a tractor-trailer driven by the plaintiffs decedent, who was killed as a result of the collision. In affirming the entry of judgment n.o.v. in favor of the defendant bus company, we held that any negligence on the part of the bus driver, in suddenly bringing his bus to a halt in order to pick up a passenger, was not a proximate cause of the death of the plaintiff’s decedent since the accident “was due entirely to the intervening and superseding negligence of Angretti in allowing his truck to pass over into the pathway of the westbound tractor-trailer . . . .”

In the case now before us, the deceased was aware of the dangerous condition created by the defendant’s reckless conduct in driving his automobile at an excessive rate of speed along the highway but, despite such knowledge, he recklessly chose to swerve his car to the left and into the path of an oncoming truck, thereby bringing about the head-on collision which caused his own death.

To summarize, the tort liability concept of proximate cause has no proper place in prosecutions for criminal homicide and more direct causal connection is required for conviction: Commonwealth v. Redline, supra, at pp. 504-505. In the instant case, the defendant’s reckless conduct was not a sufficiently direct cause of the competing driver’s death to make him criminally liable therefor.

The judgment of sentence is reversed and the defendant’s motion in arrest of judgment granted.