Baumgartner v. Whinney
| Decision Date | 15 November 1944 |
| Citation | 156 Pa.Super. 167,39 A.2d 738 |
| Parties | Baumgartner, Appellant, v. Whinney |
| Court | Pennsylvania Superior Court |
Argued September 28, 1944.
Appeal, No. 66, Oct. T., 1944, from order of C. P. No. 2 Phila. Co., March T., 1939, No. 440, in case of Karl Baumgartner, Jr., v. Joseph J. Whinney, Jr., individually and trading as Whinney's Express.
Rule to amend order of discontinuance.
Order entered striking off discontinuance, upon conditions stated opinion by Lewis, J. Plaintiff appealed.
Thomas E. Comber, Jr., with him Pepper, Bodine, Stokes & Schoch, for appellant.
Ward C. Henry, with him Swartz, Campbell & Henry, for appellee.
OPINION
RENO J.
Plaintiff sued in trespass to recover for personal injuries and damages to his automobile sustained in a collision with a motor truck driven by one of defendant's servants on February 24, 1939. Defendant's affidavit of defense denied liability and alleged, as a counterclaim, an action against plaintiff for damages to defendant's truck. A settlement was subsequently agreed upon by persons purporting to act for the parties to the action, and an order was filed with the prothonotary on February 27, 1940, directing him to mark the suit "settled, discontinued and ended." On December 3, 1943, defendant's son and administrator filed a petition to strike the words "settled and ended" from the order of discontinuance and to add thereto the words "so far as the claim of the plaintiff is concerned only." The court entered an order striking off the discontinuance, permitting defendant to proceed with the counterclaim, and giving plaintiff an opportunity to refund the $ 700 received in settlement and proceed to trial on his claim if he chose to do so. From this order plaintiff appealed.
It appears from the depositions taken in support of the petition and rule that when the statement of claim was filed plaintiff was represented by Golder and Kelley, Esqs., and that when defendant received the process he turned it over, as he was required to do by his policy of liability insurance, to Markel Service, Inc., a claim adjustment bureau acting for defendant's insurance carrier. Markel Service, Inc., was represented by Ward C. Henry, Esq., in defending the claim, and Mr. Henry was also employed by defendant to represent him as plaintiff in the counterclaim. When the counterclaim was served it was turned over by plaintiff to his insurance carrier which caused the appearance of William H. James, Esq., to be entered for plaintiff in his capacity as defendant in the counterclaim. The array of counsel, with the interests represented by them, was, therefore, as follows: Golder and Kelley, Esqs., for plaintiff's claim against defendant for personal injuries and property damage, without authority with respect to plaintiff's status as defendant in the counterclaim; Mr. Henry, for defendant, through his insurer, with authority only over the defense of plaintiff's claim against defendant; Mr. Henry, for defendant as plaintiff in the counterclaim, with no express authority to settle the cause of action; and Mr. James, for plaintiff, through his insurer, with authority to defend the counterclaim, but with no control over plaintiff's claim against defendant for which suit was originally brought. That the parties should be thus dually represented by counsel having mutually exclusive authority is explained by the fact that the matter averred in defendant's counterclaim, as permitted by the Act of April 4, 1929, P. L. 140, § 1, 12 PS § 412, is in reality a distinct cause of action against plaintiff, and not a mere defense by way of mitigation of his claim, although the two suits may, if the defendant so elects, be tried together. Beason v. Pierce, 321 Pa. 398, 184 A. 650.
Thereafter, an adjuster employed by Markel Service, Inc., interviewed Golder and Kelley, Esqs., several times in an attempt to arrive at a settlement. The conversations related to a settlement of plaintiff's claim against defendant, and defendant's counterclaim was not discussed. These conversations having culminated in a settlement, Markel Service, Inc., drew its check to the order of plaintiff, and Golder and Kelley transmitted a written release executed by plaintiff and an order signed by them directing the prothonotary to mark the case settled, discontinued and ended to Markel Service, Inc. It forwarded the order to Mr. Henry with instructions to file it, but upon presenting the order to the prothonotary Mr. Henry was advised that it could not be accepted by that officer until both he and Mr. James had signed it. Mr. Henry and Mr. James signed the order and it was filed, but Mr. Henry's testimony is that he understood the order to pertain merely to plaintiff's claim against defendant, and that he had no intention or authority to settle defendant's counterclaim. His intention, however, was not disclosed to plaintiff or any of his counsel.
Mr Henry concedes that the order stands in the way of recovery upon the counterclaim. Yet, according to his own testimony, he signed the order only after he had been notified by the prothonotary's office "that because of the existence of a counterclaim the order could not be filed without our ...
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