Fisher v. Diehl

• Decision Date: 25 January 1945
• Citation: 40 A.2d 912,156 Pa.Super. 476
• Parties: Fisher v. Diehl, Appellant
• Court: Pennsylvania Superior Court

40 A.2d 912

156 Pa.Super. 476

Fisher v. Diehl, Appellant

Superior Court of Pennsylvania

January 25, 1945

October 25, 1944, Argued

Appeal, No. 83, Oct. T., 1944, from judgment of C. P Northumberland Co., Sept. T., 1941, No. 85, in case of Louise Fisher v. Richard S. Diehl, trading as Hartleton Garage etc et al.

Trespass. Rule by defendant for severance of actions made absolute rule to join husband as additional defendant in action of wife-plaintiff made absolute, with qualification. Trial before McCann, P. J., specially presiding.

Verdict for wife-plaintiff in sum of $ 2,000, against original defendant and additional defendant, and judgment thereon. Additional defendant appealed.

Michael Kivko, with him Knight & Kivko, Todd Daniel and Henry Temin, for appellant.

Carl Rice, with him Witmer & Rice, for appellee.

Keller P. J., Baldrige, Rhodes, Hirt, Reno and James, JJ.

OPINION

PER CURIAM

This action of trespass was brought by a husband and wife against the owner of a truck to recover damages alleged to have been suffered by them, respectively, as a result of a collision between the husband-plaintiff's automobile, driven by him, in which the wife-plaintiff was a guest passenger, and a truck, owned by the defendant and negligently driven by his employee on the defendant's business.

The plaintiffs' statement contained separate claims for damages by the wife and husband, respectively, as follows:

1. The wife's claim growing out of her personal injuries.

2. The husband's claims (a) on account of his wife's injuries, including the loss of her services and companionship and for expenses paid by him on her account; (b) because of his own personal injuries; and (c) for property damage to his automobile.

These claims were properly brought in one action, ^[1] in accordance with Rule 2228(a) of Rules of Civil Procedure Governing Joinder of Parties, which, while suspending sections 1, 2 and 4, virtually repromulgated the provisions of the Act of May 8, 1895, P. L. 54. See Rule 2231(c). Accordingly, while the several claims were properly brought in one action, the rights of action of the several plaintiffs were not merged, but in case of a recovery separate verdicts and separate judgments would be entered, as provided by the Act of 1895.

The defendant in the action filed two petitions. The first asked for a severance of the two actions. It averred that the collision was caused by the negligence of the husband-plaintiff in driving his automobile into the parked vehicle of the defendant, and, therefore, (1) the sole and exclusive liability for said collision and the resulting injuries rested on the husband-plaintiff, Maurice F. Fisher; or ^[2] (2) if there was any negligence on the part of defendant's driver, the negligence of Maurice F. Fisher was a major contributing factor and he was jointly liable with the defendant for the injuries received by the wife-plaintiff, Louise Fisher. The defendant averred that in order to protect his right of contribution against Maurice F. Fisher -- if it should be determined that there was any liability upon defendant -- he desired to join said Maurice F. Fisher as an additional defendant in the action by Louise Fisher for damages for injuries to her person; that Rule 2252 permits the joinder of a person as an additional defendant only if he is not a party to the action; that the plaintiff, Maurice F. Fisher, is a party to his wife's action for matters of procedure only. In order to avoid prejudice to the defendant and to permit him to join Maurice F. Fisher as an additional defendant in the action of Louise Fisher, the petitioner asked for a severance of the causes of action of Maurice F. Fisher and Louise Fisher, respectively, and their trial as separate causes of action.

The second petition, which was dependent on the allowance of the first, asked that Maurice F. Fisher be joined as an additional defendant in the action of Louise Fisher against defendant, so as to protect his right of contribution against Maurice F. Fisher, if on the trial of that action it should be found that defendant and said Maurice F. Fisher had been jointly negligent in causing the accident which resulted in Louise Fisher's injuries.

Rules to show cause were granted, which were disposed of by the court as follows: The rule of the defendant for a severance of the actions was made absolute. The rule to join Maurice F. Fisher as an additional defendant in the action brought by Louise Fisher against the original defendant was made absolute, "in so far as he may be jointly liable with the original defendant".

The trial of the action of the wife-plaintiff, Louise Fisher, as thus severed, resulted in a verdict of $ 2000 in her favor against Richard S. Diehl and Maurice F. Fisher.

The additional defendant had presented a point for binding instructions in his favor, which the court refused. After the verdict, he moved for judgment nonobstante veredicto, which was likewise refused and judgment was entered on the verdict. The additional defendant appealed.

In making absolute the above stated rules, granted on the petition of the defendant, the court below had clearly stated its views as to their effect, as follows: "However, the petition alleges in addition, joint liability with the defendant on the part of Maurice F. Fisher, and that the joinder is only for the purpose of protecting the original defendant's right to contribution. Under these circumstances, joinder of Maurice F. Fisher, as additional defendant, is right and equitable. It is the duty of the Court, however, to see that the rights of the parties are preserved and to control any execution that might be issued on any judgments rendered, so that Louise Fisher may recover only from the original defendant, Richard S. Diehl, and that the said Richard S. Diehl, original defendant, may obtain only contribution from Maurice F. Fisher."

The opinion of the court, refusing judgment n. o. v. and ordering judgment to be entered on the verdict, specifically approved the prior statement of the court, as above set forth, and that statement is to be considered as impliedly incorporated into its later opinion and order.

A stipulation was entered into of record by the parties, agreeing that "it is the intention of the parties . . . to withdraw from consideration by the court all motions for new trial or judgment n. o. v. now pending in the above actions, except the motion of Maurice F. Fisher, additional defendant, for judgment n. o. v., and it is the further intention of the parties to withdraw from consideration by the court said motion of Maurice F. Fisher, additional defendant, for judgment n. o. v., except insofar as the said motion is predicated upon the contention that Maurice F. Fisher was improperly joined as an additional defendant in the action wherein his wife, Louise Fisher, is the plaintiff."

Notwithstanding this stipulation, the appellant has assigned for error (5th assignment) the order of the court making absolute the defendant's rule for a severance of the action brought by Louise Fisher for her personal injuries from the action of Maurice F. Fisher, based on his claims for personal injuries, property damages, and for the loss of his wife's services and companionship, etc.

We think he is concluded by his formal stipulation of record which limited the question involved in the case to his right to judgment n. o. v. because he was "improperly joined as an additional defendant" in his wife's action.

However, Rule 213(b) specifically provides: "The court in furtherance of convenience or to avoid prejudice, may, on its own motion or on motion of any party, order a separate trial of any cause of action, claim or counter-claim, set-off or cross-suit, or of any separate issue, or of any number of causes of action, claims, counter-claims, set-offs, cross-suits, or issues."

The original Act of 1895, P. L. 54, supra, requiring that the separate rights of action accruing to a husband and wife, respectively, from a wrongful injury inflicted on the person of the wife, be redressed in one action brought in the names of both, was purely procedural in character and not substantive. It was only to avoid inconvenience and multiplicity of actions, and it should not be enforced or applied so as to prejudice the substantive legal rights of any party. See note of Procedural Rules Committee, under Rule 2231(c). (Goodrich-Amram Annotations § 2231(c)).

When the Act of 1895 was passed it was the rule in this State that as between joint tortfeasors there was no contribution. See Turton v. Powelton Electric Co., 185 Pa. 406, 408, 39 A. 1053; ^[3] Oakdale Borough v. Gamble, 201 Pa. 289, 291, 50 A. 971. That rule was changed in Goldman v. Mitchell-Fletcher Co., 292 Pa. 354, 141 A. 231, so as to limit its application to cases where there has been an intentional violation of the law, or where the wrongdoer knows or is presumed to know that the act was unlawful; and contribution among joint tortfeasors has since then been allowed, except in circumstances where it would be inequitable. This action of the Supreme Court was, in effect, confirmed by the Legislature by the Act of June 24, 1939, P. L. 1075, which provides: "Contribution shall be enforceable among those who are jointly or severally liable for a tort where, as between them such liabilities are either all primary or all secondary." ^[4]

Consequently, if the concurrent negligence of Maurice F. Fisher and the defendant caused the injuries to Mrs. Fisher, the defendant had a substantive legal right to contribution from his joint tort feasor, which should not be affected or denied by the purely procedural statute or rule enacted or promulgated for convenience and to avoid multiplicity of actions.

We...