Nunamaker v. New Alexandria Bus Co., Inc.

• Decision Date: 29 May 1952
• Docket Number: 7717
• Citation: Nunamaker v. New Alexandria Bus Co., Inc., 371 Pa. 28, 88 A.2d 697 (Pa. 1952)
• Parties: NUNAMAKER et ux. v. NEW ALEXANDRIA BUS CO., Inc., et al. Appeal of NEW ALEXANDRIA BUS CO., Inc.
• Court: Pennsylvania Supreme Court

88 A.2d 697

371 Pa. 28

NUNAMAKER et ux. v. NEW ALEXANDRIA BUS CO., Inc., et al.

Appeal of NEW ALEXANDRIA BUS CO., Inc.

No. 7717

Supreme Court of Pennsylvania

May 29, 1952

Argued March 28, 1952

Appeal, No. 121, March T., 1952, from judgment of Court of Common Pleas of Westmoreland County, Aug. T., 1950, No. 124 in case of Charles Nunamaker et ux. v. New Alexandria Bus Company, Inc., and Luther Tanyer. Judgment reversed.

Trespass for personal injuries. Before O'CONNELL, J.

Verdict for plaintiffs in the sum of $6,573.70; upon motion by defendant Bus Company for a new trial, the Court in banc divided in opinion; order entered adjudging legal effect of opposed opinions and orders of evenly divided members of Court to be that motion for a new trial had not prevailed judgment entered on verdict. Defendant Bus Company appealed.

Judgment reversed and a new trial granted.

H. Reginald Belden , with him Paul M. Robinson and Edwin J. Morrell , for appellant.

Joseph M. Loughran , for appellees.

Before DREW, C.J., STEARNE, JONES, BELL, CHIDSEY and MUSMANNO, JJ.

OPINION

MR. JUSTICE JONES

The plaintiffs, a husband and wife, sued the defendant bus company and the driver of a private automobile for damages for personal injury to the wife resulting from a collision between the automobile and a bus of the defendant company on which the wife was a passenger for hire. The complaint alleged that the accident was caused by the negligence of the drivers of the two vehicles. Only the defendant company appeared and defended. The wife claimed damages for her physical injuries and for pain and suffering, while the husband claimed for the loss of his wife's services and companionship and for the expenses occasioned by her injuries. The two cases were joined for suit in the one action as required by Rule 2228 (a) of the Pennsylvania Rules of Civil Procedure: 337 Pa. 6a.

As a direct consequence of the learned trial judge's instruction to the jury concerning the form their verdict should take in case they found for the plaintiffs, the jury returned a verdict in one lump sum for both plaintiffs. The defendant company moved for a new trial. Argument on the motion was heard by a court en banc composed of the four Common Pleas judges of the County who became evenly divided in opinion as to whether or not a new trial should be granted. Two separate opinions with respective orders, each concurred in by two members of the court en banc, were filed, the one order granting, the other refusing, the motion for a new trial.

In the impasse thus arrived at, one of the judges who favored the granting of a new trial entered an order (apparently with the acquiescence of the other three members of the court) adjudging that the legal effect of the opposed opinions and orders of the evenly divided members of the court was that the motion for a new trial had not prevailed and, therewith, directed that "the papers [be] filed in the Prothonotary's Office." While the order did not specifically contain any definitive action with respect to the disposition of the motion for new trial, the prothonotary evidently construed it to be tantamount to a refusal of the motion and, on the same day, accepted payment of the verdict fee and entered the judgment on the verdict from which this appeal was taken.

The fundamental point on which the members of the court split was whether the single verdict on the two causes of action was fatally defective. It undoubtedly was. But, before we come to that, we shall point out for the future guidance of the members of the court below what they should do to avoid an even division of opinion to the end that direct and positive action by the court may be attained. In the first place, it is unnecessary for all four judges to sit at the same time as a court en banc. According to a prearranged schedule, the judges could rotate in panels of three for the purpose of constituting a court en banc, the panel of course containing, if possible, the trial judge whose work is the immediate subject of review. If, however, all four judges should insist upon participating in the court en banc at any given time, upon the eventuation of an equal division of opinion among them, an outside judge should be called in as an additional member of the court for the time being, reargument should be had and disposition of the matter made by majority action of the court. A litigant is entitled to positive and definitive action in a court of first instance and that can be had only by the unanimous or majority vote of the judges composing the court. Judicial practices to achieve that goal should be pursued. In appellate review it sometimes happens that the appealed decision must be affirmed because of an evenly divided court. But, that is because there is no provision for augmenting such a court by the addition of a temporary member. Such practice has no bearing on the manner in which a court of first instance can properly attain finality of a matter before it. In fact, it would have been more in keeping with the practice governing the entry of summary judgments in general had the learned court below granted a new trial (i.e., an interlocutory order) rather than enter a definitive judgment when the members of the court were evenly divided in opinion on the merit of the motion.

Injury to a wife, not resulting in death, confers upon her and her husband separate and distinct rights of action for which (when both are used for) separate verdicts must be returned and separate judgments entered. So independent of each other are the substantive rights of a husband and wife in the indicated circumstances that, at common law, the two causes could be used for only in separate actions: see Fries v. Wiser , 62 Pa.Super. 218, 220. Their joinder in one action was not permitted. A statute was necessary to effect our procedural change to that end. See Act of May 8, 1895, P.L. 54, 12 PS § 1621 et seq.

Sec. 1 of the Act of 1895, supra, provided that "Whenever injury, not resulting in death, shall be wrongfully inflicted upon the person of the wife, and a right of action for such wrongful injury accrues to the wife, and also to the husband, these two rights of action shall be redressed in only one suit brought in the names of the husband and the wife." Sec. 2 of the Act, after allowing for a waiver by a husband or a wife of "his or her right of action" for injury to the wife, provided that "... if both join in the suit, separate verdicts shall be rendered, one verdict determining the right of the wife and the other verdict determining the right of the husband, and separate judgments shall be entered thereon with the right to separate executions." The Act made no change in the substantive rights of a husband and wife for injury to the wife. In fact, its language presupposes the existence of the substantive rights. The changes made by the Act were purely procedural and the legislature so recognized. By its express terms, the Act was made applicable to pending suits which it could not constitutionally have been if it wrought a change in the substantive rights of the parties embraced by its terms. Cf. Agostin v. Pittsburgh Steel Foundry Corp ., 354 Pa. 543, 549, 47 A.2d 680, and cases there cited.

The Pennsylvania Rules of Civil Procedure made no material change in the prior law with respect to the procedure now under consideration. Rule 2228 (a) took the place of Section 1 of the Act of 1895 providing for the enforcement in one action of the separate rights of a husband and wife for injury to the wife. Rule 2231 (d) continued the practice of returning separate verdicts on the respective causes of action of the husband and wife and of entering separate judgments thereon. The Rules Committee so understood the import of Rule 2231 (d) as evidenced by their Note thereto wherein they say that "In providing for separate verdicts and judgments, the rule [No. 2231 (d)] follows the Pennsylvania statutes relating to actions for injuries to a wife... [citing] Act of May 8, 1895, P.L. 54, sec. 2," etc: 337 Pa. 13a, 14a. That the procedure is the same under the Rules as it was under the Act of 1895 is not open to question. Compare Fries v. Wiser , supra (1916), with Fisher v. Diehl , 156 Pa.Super. 476, 478, 40 A.2d 912 (1944).

Nor is it a correct statement of the law to say that, in a case such as this, it is only the plaintiffs who have standing to complain of the form of the verdict in their favor jointly. The defendant, too, has a right to have separate verdicts returned against him and separate judgments entered thereon as the law contemplates. The Rules Committee's Note to Rule 2231 (d), cit. supra, states that "This subdivision guarantees a party who asserts or against whom is asserted an independent claim the same procedural rights that he would enjoy, and imposes the same burdens to which he would be subject, if he had sued or been sued in a separate action": 337 Pa. 13a (Emphasis supplied). Only by the allocation of the damages to the respective claimants by separate verdicts can the defendant be informed if the verdicts are consistent or one or the other is excessive. The importance of such information is obvious. Cf. Taylor v. Rounds , 349 Pa. 157, 158, 36 A.2d 817.

The case of Siidekum, Admr., v. Animal Rescue League 353 Pa. 408, 45 A.2d 59, which the appellees cite, is in no sense authority for a single verdict in a suit where separate verdicts on separate causes of action are required. The Siidekum case was an action by a husband as administrator under the Wrongful Death and Survival statutes for the death of his wife. Separate verdicts were returned in that case The obvious disparity between the amounts of the verdicts in relation to the items for which recovery could...