Nunamaker v. Finnegan

• Decision Date: 02 October 1933
• Docket Number: 171-1933
• Citation: 168 A. 482,110 Pa.Super. 404
• Parties: Nunamaker et al. for Use, Appellant, v. Finnegan
• Court: Pennsylvania Superior Court

168 A. 482

110 Pa.Super. 404

Nunamaker et al. for Use, Appellant, v. Finnegan

No. 171-1933

Superior Court of Pennsylvania

October 2, 1933

Argued April 11, 1933

Appeal by use-plaintiff from judgment of C. P., Erie County, May T. 1930, No. 131, in the case of John Nunamaker by Charles H Nunamaker, his Father and Next Friend, and Charles H Nunamaker in his own right, now to the use of Byron A. Baur v. Thomas Finnegan, a Minor, by James B. Yard, Guardian ad Litem and R. B. Way.

Trespass to recover damages for personal injuries. Before Hirt, J.

The facts are stated in the opinion of the Superior Court.

Verdict against defendant and additional defendant and in favor of Charles H. Nunamaker in the sum of $ 521.50 and for John Nunamaker in the sum of $ 1,500. Subsequently the court, on motion, entered judgment on the verdict against original defendant and entered a judgment non obstante veredicto in favor of the additional defendant. Use-plaintiff appealed.

Error assigned, among others, was the entry of judgment non obstante veredicto for the additional defendant.

Affirmed.

John A. Spaeder, and with him March & Eaton, and Homer T. Eaton, for appellant.

Frank B. Quinn, and with him Charles H. English and Raymond P. Leemhuis, of English, Quinn, Leemhuis & Tayntor, for appellee.

Before Trexler, P. J., Keller, Cunningham, Baldrige, Stadtfeld, Parker and James, JJ.

OPINION

Cunningham, J.

Under the assignments of error and statement of questions involved, our sole inquiry upon this appeal relates to the validity of a writ of scire facias, issued under the Act of April 10, 1929, P. L. 479, to bring upon the record an additional defendant. The action below was trespass on behalf of the minor plaintiff to recover damages for personal injuries sustained by him as the result of an automobile accident (a right angle collision at the intersection of two streets in the city of Erie) which occurred while he was riding on a truck operated by the original defendant, Finnegan, also a minor, and by the minor's father, in his own right, to recover for medical expenses, etc. The suit was brought February 21, 1930, and on October 17th of that year the writ of scire facias was issued in behalf of Finnegan to bring R. B. Way, the driver of the other car involved in the accident, upon the record as additional defendant.

Both the praecipe for the writ and the writ itself alleged that Way was "liable over to said defendant for the cause of action declared on in the said suit, for the whole or any amount which may be recovered against said defendant by reason of the fact that the proximate cause for the injuries and any consequent damages sustained by the plaintiff was due to the careless, negligent and reckless manner in which the defendant, R. B. Way, operated his motor vehicle, in that the said R. B. Way operated and drove his automobile with great force and violence into the automobile in which the plaintiff was riding."

The additional defendant filed no answer to the writ, but entered a general appearance. The case came on for trial on March 9, 1932, and both the original defendant and the additional defendant took an active part in the defense. The trial judge treated the case as if both Finnegan and Way had originally been made joint defendants, and charged the jury that a verdict might be rendered against either of them, or, if there was concurrent negligence, against both. The jury found that Finnegan and Way were jointly negligent. Subsequently both defendants filed motions for judgment notwithstanding the verdict. The court, in banc, denied Finnegan's motion, but entered judgment, n.o.v. in favor of Way. The use-plaintiff thereupon took this appeal, assigning as error the entry of judgment in favor of Way. No appeal was taken by Finnegan, either from the judgment entered against him or the action of the court in granting Way's motion.

The grounds upon which the lower court granted judgment n.o.v. in favor of Way, as stated in its opinion, were that the averments in the praecipe, taken together, were the equivalent of an allegation that Way was alone liable for the cause of action declared on; that there was no authority for such a writ in the original Act of 1929; that the amendatory act of June 22, 1931, P. L. 663, which authorizes an additional defendant to be brought upon the record upon the ground that he is "alone liable" for the accident, became effective after the date of the writ; and that the writ was void because, when issued, it was not authorized by any statute. Appellant makes three objections to these propositions, contending; (1) that there was a proper basis for the allegation of liability over by Way to Finnegan, since the negligence of Way was the proximate cause of the accident, and the negligence of Finnegan a mere condition; (2) that, by appearing and defending the suit, Way waived any defects in the writ; and (3) that, in any event, the Act of 1931, being procedural only, remedied any defects in the original writ, even if it be construed as alleging a sole liability.

The principal difficulty with appellant's position is that the writ was issued upon an unsound theory with respect to the relations between tort-feasors. It is true that the Act of 1929 authorized an original defendant to bring upon the record, as an additional defendant one alleged to be liable over to him for the cause of action sued on. The purpose of this provision, however, was to permit one to be brought in as a defendant who stood in the relation of an indemnitor to the original defendant. Such obligation to indemnify might grow out of a contractual relation, express or implied, as that between principal and...