Abraham v. National Biscuit Co., 6154.

• Citation: 111 ALR 1313,89 F.2d 266
• Decision Date: 20 April 1937
• Docket Number: No. 6154.,6154.
• Parties: ABRAHAM v. NATIONAL BISCUIT CO.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

111 ALR 1313, 89 F.2d 266 (1937)

ABRAHAM v. NATIONAL BISCUIT CO.

No. 6154.

Circuit Court of Appeals, Third Circuit.

February 9, 1937.

Rehearing Denied April 20, 1937.

John E. Evans, Jr., Margiotti, Pugliese, Evans & Buckley, and Alex J. Bielski, all of Pittsburgh, Pa., for appellant.

Harold E. McCamey, H. A. Robinson, and Dickie, Robinson & McCamey, all of Pittsburgh, Pa., for appellee.

Before BUFFINGTON, Circuit Judge, and WELSH and MARIS, District Judges.

MARIS, District Judge.

This was a negligence action for damages for the death of plaintiff's husband resulting from an automobile accident. The accident occurred in the borough of Glassport, Allegheny county, Pa. The deceased was riding as a guest in a Chevrolet car operated by David Kail. He received the injuries from which he died when that car came into collision with a truck belonging to the National Biscuit Company operated by its employee Edward A. Roth. The plaintiff brought suit against the National Biscuit Company and the latter by scire facias brought David Kail into the case as an additional defendant. The trial resulted in a verdict in favor of the defendant, National Biscuit Company. No verdict was rendered either for or against the additional defendant David Kail. A new trial having been denied and judgment having been entered upon the verdict, plaintiff took the present appeal and has assigned as error certain rulings upon evidence made by the trial judge as well as certain portions of his charge to the jury.

We shall first consider the fifth assignment of error which complains, inter alia, of the following portion of the court's charge to the jury:

"If you find that either Kail or the National Biscuit Company is responsible for this accident, you could not bring in a joint verdict against them both, because in this case, as the pleadings now stand, you are to determine whether Kail was solely responsible, and alone responsible, for the collision, or whether the National Biscuit Company was. There could be no joint liability found against both Kail and the National Biscuit Company in this case. If you find that there was negligence on the part of either of them, then you could bring in a verdict as against the one you find responsible."

As we have seen, David Kail was brought into the case as an additional defendant by the original defendant upon a writ of scire facias which was issued under the Pennsylvania Scire Facias Act of April 10, 1929, P.L. 479, as amended by the Acts of June 22, 1931, P.L. 663, § 2, and May 18, 1933, P.L. 807 (12 P.S. § 141). That act provides:

"Any defendant, named in any action, may sue out, as of course, a writ of scire facias to bring upon the record, as an additional defendant, any other person alleged to be alone liable or liable over to him for the cause of action declared on, or jointly or severally liable therefor with him, with the same force and effect as if such other had been originally sued; and such original defendant shall have the same rights in securing service of said writ as the plaintiff in the proceedings had for service of process in said cause. * * * Where it shall appear that an added defendant is liable to the plaintiff, either alone or jointly with any other defendant, the plaintiff may have verdict and judgment or other relief against such additional defendant to the same extent as if such defendant had been duly summoned by the plaintiff and the statement of claim had been amended to include such defendant, and as if he had replied thereto denying all liability."

The writ of scire facias in this case averred that the accident was caused solely by the negligence of the additional defendant and that he was alone liable for the cause of action declared on in the suit. He in his turn filed an affidavit of defense in which he denied that his negligence was responsible for the accident and, on the contrary, averred that it was caused solely by the negligence of the employee of the National Biscuit Company. There was evidence from which the jury might have found that the drivers of both automobiles were negligent, but as we have seen the trial judge charged the jury that they could not find both defendants jointly liable. In doing so, he construed the Pennsylvania Scire Facias Act as this court had done in Yellow Cab Co. v. Rodgers, 61 F.(2d) 729. Since our decision in that case, however, and since the trial of this case in the court below, the Supreme Court of Pennsylvania in the case of Majewski v. Lempka, 321 Pa. 369, 183 A. 777, 779, has construed the act, as now amended, to authorize a recovery against both the defendant and the additional defendant jointly, even though the writ of scire facias under which the additional defendant is brought upon the record avers that he is solely liable. In that case Mr. Justice Maxey in the opinion of the court said:

"In behalf of the additional defendants it is further contended that the court below should have entered judgment n. o. v. in their favor because of the fact that the writs of scire facias whereby they were summoned alleged that they were solely liable, whereas the jury's verdict established that the original defendant was also responsible. They argue that the writ of scire facias is not only a method of bringing a party into court, but that it is also a pleading and must, therefore, state a good cause of action. Nunamaker v. Finnegan, 110 Pa.Super. 404, 409, 168 A. 482; Rudman v. City of Scranton, 114 Pa.Super. 148, 153, 173 A. 892. It is urged, in view of the verdict finding her jointly liable, that the original defendant failed to state a good cause of action when she charged the additional defendants with sole liability. There is no merit in the argument. The evidence of the original defendant made out a prima facie case of sole liability on the part of the additional defendants, and it is of no moment that the jury, under all the evidence, found that all the defendants contributed to causal culpability. The finding against her was in all probability based upon the testimony that was offered, respectively, by plaintiffs and by the additional defendants. She stated and offered testimony tending to prove that plaintiff...