Daly v. Buterbaugh

• Decision Date: 07 October 1964
• Citation: 416 Pa. 523,207 A.2d 412
• Parties: Nancy DALY and Donald Daly, Her Husband, v. Edward B. BUTERBAUGH, Defendant, and Donald Daly, Additional Defendant. Appeal of Donald DALY.
• Court: Pennsylvania Supreme Court

Page 412

207 A.2d 412

416 Pa. 523

Nancy DALY and Donald Daly, Her Husband, v. Edward B. BUTERBAUGH, Defendant and Donald Daly, Additional Defendant Appeal of Donald DALY.

Supreme Court of Pennsylvania.

Oct. 7, 1964.

Rehearing Denied March 23, 1965.

Curtze, Gent & McCullough, John G. Gent, Erie, for appellant.

John M. Wolford, Dunn & Wolford, Isaac J. Silin, Silin, Eckert & Burke, Erie, for appellees.

Before BELL, C. J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

JONES, Justice.

On December 31, 1960, at approximately 11:20 p. m., Nancy Daly was a passenger in a motor vehicle owned and then being operated by her husband, Donald Daly, [Daly], in a northerly direction on Liberty Street, Erie, a through street. Liberty Street is intersected by Eleventh Street, a one way street for vehicular traffic proceeding in an easterly direction, and, at that intersection, a stop sign is located which requires Eleventh Street vehicular traffic to stop before entering Liberty Street. As Daly's motor vehicle entered this intersection, it was struck by a motor vehicle, owned and then operated by Edward Buterbaugh, [Buterbaugh], which had been traveling in an easterly direction on Eleventh Street. As a result of this collision, both Nancy Daly and Daly sustained personal injuries.

To recover their several damages sustained in this accident, Nancy Daly and Daly instituted joint trespass actions in the Court of Common Pleas of Erie County against Buterbaugh and Buterbaugh then secured a severance of the actions and joined Daly as an additional defendant in the Nancy Daly-Buterbaugh action. ¹ After issue joined, the matter came on for trial before a court and jury and the jury returned the following verdict: 'We * * * do find for the Plaintiff [Nancy Daly] and recommend compensation for pain for the amount of $16,000.00 and compensation for permanent changes for an amount of $30,000.00.' ² Daly moved for both a new trial and judgment n. o. v.; Buterbaugh filed no post-trial motions and a judgment on the verdict in favor of Nancy Daly against Buterbaugh was entered. ³ During the pendency of Daly's post-trial motions, upon the petition of the Keystone Insurance Company (Buterbaugh's insurance carrier), the court directed, inter alia, that Keystone should pay to Nancy Daly $7,902.00 and, by such payment, be exonerated and discharged from its policy obligation for payment of Nancy Daly's judgment against Buterbaugh but that court order expressly provided that such payment would not 'constitute an exoneration or discharge of the personal obligation of [Buterbaugh] arising out of the [Nancy Daly] judgment' and said judgment was not by such payment satisfied. Sometime thereafter, Daly's post-trial motions were dismissed and the Prothonotary directed to enter judgment on the verdict. The judgment as entered on August 28, 1963, reads: '* * * judgment in favor of Nancy Daly against Donald Daly, additional defendant, in the amount of the verdict $46,000.00 plus int. from date thereof October 18, 1962. * * *' From that judgment this appeal is taken.

Three questions are raised upon this appeal: ⁴ (1) whether the entry of judgment in this trespass action in favor of the wife, Nancy Daly, against her husband, Daly, was valid?; (2) whether the court below erred 'in directing judgment in favor of [Buterbaugh] original defendant, against [Daly], the additional defendant husband when [Buterbaugh] had paid less than his pro rata share of the verdict and judgment entered against him and no claim for relief for contribution was requested by [Buterbaugh]?; ⁵ (3) whether a new trial should be granted because of certain allegedly improper remarks by Nancy Daly's counsel in his jury summation?

At the outset, Nancy Daly's counsel contends that the first question, i. e., that question which attacks the validity of the Nancy Daly-Daly judgment, is improperly before this Court because it was not raised in the court below. It is clear that questions which could have been but were not raised in the court below need not be considered on appeal: Clark v. Rutecki, 408 Pa. 25, 182 A.2d 687. To this contention Daly's counsel answers that it was not until disposition of the post-trial motions and the entry of the judgment under direction of the court below that the invalidity of this judgment appeared. In other words, Daly's counsel assumed--with some justification--that the judgment directed to be entered would be in favor of Nancy Daly against Buterbaugh, original defendant, and Daly, additional defendant, and not in favor of Nancy Daly against Daly, additional defendant. We believe that Daly's counsel's position has merit. The attack on the validity of the judgment as entered could not have been raised at any other stage of the proceeding and the error complained of may be considered 'basic and fundamental' within the rationale of McDonald v. Ferrebee, 366 Pa. 543, 547, 79 A.2d 232, and Giannone v. Reale, 333 Pa. 21, 24, 3 A.2d 331.

Daly first attacks the validity of the judgment entered against him in favor of Nancy Daly and the thrust of this attack is that the entry of such judgment accomplishes a result proscribed by the law in this Commonwealth, i. e., that it grants a wife the right during coverture, to recover damages for personal injuries from her husband for a tort committed by him during coverture. Our inquiry into the validity of Daly's position must be initiated by an examination of the pleadings of Nancy Daly and Buterbaugh. There is no averment in the complaint of Nancy Daly that Daly had been negligent nor that Daly was in anywise liable to her for damages; therefore, the effect of this judgment is to award to her damages for which she made no claim and for negligence which she did not aver. Buterbaugh's complaint averred that Daly was negligent and, by reason thereof, the became solely liable to Nancy Daly ⁶ or, in the alternative, 'was jointly and severally liable with the original defendant, [Buterbaugh], * * *'

With the exception of one decision hereinafter noted, our case law has consistently held that a wife during coverture cannot maintain a trespass action against her husband to recover damages for personal injuries caused by the husband: Meisel v. Little, 407 Pa. 546, 548, 549, 180 A.2d 772; Johnson v. Peoples First National Bank & Trust Co., 394 Pa. 116, 118, 119, 145 A.2d 716 and cases therein cited. The basis for this rule is set forth in Koontz v. Messer, 320 Pa. 487, 493, 181 A. 792, 794: '* * * the personal immunity which protects [the husband] is based simply upon the policy of preserved domestic peace and felicity.'

In Koontz v. Messer, supra, a wife instituted a trespass action against the employers of her husband for injuries alleged to have been sustained by her through the negligence of her husband while in the course of his employment; upon the theory that the husband-employee was liable over to his employers, the husband was brought upon the record as an additional defendant; the jury returned a verdict in favor of the wife against the employers and in favor of the employers against the husband-employee. We held that the wife, on the theory of respondeat superior, could sue the employers of her husband even though she could not sue her husband and that the personal immunity of the husband from suit by his wife did not prevent him, as an additional defendant, from being liable to answer, by way of contribution, to the third parties sued by the wife. Koontz is presently pertinent in two respects: (a) the joinder of the husband as an additional defendant, potentially liable by way of contribution to the third party-original defendant, is proper even where the suit against the third party-original defendant is by the wife; (b) even though the husband be joined as an additional defendant, such joinder does not enlarge the right of the wife to recover damages because, as this Court said: 'Plaintiff [the wife] has had, and could have, no recovery against her husband, although the latter is joined as an additional defendant'. (320 Pa. p. 494, 181 A. p. 795).

Fisher v. Diehl, 156 Pa. Super. 476, 40 A.2d 912, presented a situation almost identical to the instant situation. In Fisher, a wife and husband instituted a trespass action against a third party to recover damages resulting from a collision between the husband's motor vehicle, then operated by him, and a truck owned by the third party and then operated by the third party's employee. The third party requested a severance of the actions and a joinder of the husband as an additional defendant, the latter on the theory that the husband was solely or, in the alternative, jointly liable for the accident. The court below granted both the requested severance of the actions and the joinder of the husband as an additional defendant. ⁷ At trial, the jury returned a verdict against both the third party and the husband. On appeal, the sole question at issue was the propriety of the joinder of the husband as an additional defendant. In ruling that such joinder was proper, the late President Judge Keller stated: 'The action of the court below was not equivalent to permitting an action by the wife against her husband. Her husband is not a party defendant to the action as far as she is concerned. The judgment against him, as restricted by the Court, ⁸ is not enforceable by her, nor does it enure to her benefit. It is simply a judgment enuring to the benefit of the original defendant if he pays or is required to pay the wife's judgment; and it then requires the husband to pay to the original defendant only one-half of the damages paid by the latter as a result of the joint negligence of both.' (pp. 483, 484, 40 A.2d p. 917). The Court held the joinder of the husband as additional defendant was proper and the judgment against both the third party and the husband should be affirmed subject, however, to the provision that 'no execution be issued by the...