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May 2, 1961


Appeal, No. 57, Jan. T., 1961, from order of Superior Court, Oct. T., 1959, No. 410, affirming judgment of Court of Quarter Sessions of Chester County, Sept. T., 1957, No. 335, in case of Commonwealth of Pennsylvania v. Leroy W. Root. Judgment reversed.


Franklin L. Gordon, with him Gordon & Gordon, for appellant.

Alfred Delduco, Assistant District Attorney, with him Samuel J. Halpren, District Attorney, for Commonwealth, appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Jones

[ 403 Pa. Page 573]


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 prior 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

[ 403 Pa. Page 574]

    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 casual 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

[ 403 Pa. Page 575]

    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 cases 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

[ 403 Pa. Page 576]

    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 ...

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