Weiner v. Targan

• Decision Date: 12 December 1930
• Docket Number: 352-1930
• Citation: 100 Pa.Super. 278
• Parties: Weiner v. Targan, Appellant
• Court: Pennsylvania Superior Court

100 Pa.Super. 278

Weiner v. Targan, Appellant

No. 352-1930

Superior Court of Pennsylvania

December 12, 1930

Argued November 14, 1930.

Appeal by defendant from order of C. P., No. 5, Philadelphia County-1927, No. 11775, in the case of Benjamin Weiner v Saul Targan.

Trespass to recover for personal injuries. Before Martin, J.

Petition to open judgment.

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

Verdict for plaintiff in the sum of $ 800 and judgment entered thereon. The court dismissed the rule. Defendant appealed.

Error assigned, among others, was the order of the court.

Abraham Wernick of Evans & Wernick, for appellant.

Sundheim Folz & Sundheim, for appellee.

Before Trexler, P. J., Keller, Linn, Gawthrop, Cunningham, Baldrige and Whitmore, JJ.

OPINION

Linn, J.

In view of the serious nature of the charges made by defendant in his petition to open the judgment, we may perhaps express regret that plaintiff did not file an answer to the petition, so that, after depositions in support of their claims by the respective parties, the merits of the controversy might have been finally considered on the facts; instead, we can now deal only with defendant's averments to the effect that the judgment was procured by fraud on the court below and on the defendant, alleged to have been perpetrated by plaintiff, his counsel, defendant's insurer and his trial counsel, when, in fact, the evidence hereafter to be taken may show that there was no culpable misconduct on the part of any one accused.

The appeal is from an order striking off defendant's petition for a rule to show cause why judgment against him on a verdict after trial by jury in an accident case should not be opened. Instead of answering the rule and creating an issue on which the facts might have been found, plaintiff moved to strike off the petition and rule on two grounds: 1, that judgment on a verdict after trial cannot be opened after the term; 2, that the facts averred as ground for opening judgment were the same as those asserted in a motion for a new trial which had been refused within the term.

Defendant's petition to open was supported by affidavits of witnesses attached to the petition stating facts which defendant asked leave to prove by depositions. As no answer was filed by plaintiff, we for present purposes, must assume that the facts are as averred by defendant.

Plaintiff sued for damages, alleging that while a pedestrian on a side walk, he was injured by defendant's automobile, driven by defendant's son, coming into collision with another car and running up on the sidewalk. Defendant was insured by Indemnity Exchange of America, and pursuant to the policy, sent the summons to the insurer. Its attorney entered an appearance for defendant. Plaintiff filed a statement of claim and served a copy on counsel of record, who, so defendant contends, did not advise him of the nature of the claim. He was not informed that the case was on the trial list, nor was he notified to be in court, but by letter, he was requested " to send" his son at 9:15 on the day of trial; it is not clear whether the son was to be sent to court or to the attorney's office; there is no averment that the son was subpoenaed. Through oversight that would ordinarily not furnish ground for relief after verdict, the son was not in court at the time when he should have been there; it is said that he forgot that he had been notified to appear and that he did not arrive until after the evidence was in, and while the judge was charging the jury.

Before any evidence was taken, counsel in court for defendant, had the following entry made on the stenographer's notes: " Mr. Kitchen: I ask that it be noted of record that the defendant is not present in court when the case is called for trial and that the case is now being tried ex parte." No formal withdrawal of counsel's appearance for defendant was filed; nor does it appear that leave of court to withdraw from the trial was obtained (cf. Spector v. Greenstein, 85 Pa.Super. 177); on the contrary, after verdict, a motion for a new trial was filed by counsel of record. It does not appear that a motion to continue the trial was made, or that the court was asked temporarily to delay trial pursuant to Rule 121 of the court below, until the witness could be brought in by attachment or otherwise, or that defendant's presence was essential or desired. It was of course defendant's duty, if properly notified, to have his witnesses in court; and his son, who was driving his car, should have been there, especially if he had been subpoenaed. While it does not appear whether Mr. Kitchen remained in court during the trial, the record shows that plaintiff, his wife and his employer testified without cross-examination. The only evidence that an accident happened was given by plaintiff, the other witnesses testifying to alleged damage. It is to be noted at this point, however, that when the case was called for trial, defendant had one very important witness in court, who was sent away without being called to testify. This witness, the policeman, Stevenson, declares in one of the affidavits mentioned, that he was in court pursuant to subpoena served on defendant's behalf by the indemnity company.

The jury rendered a verdict for plaintiff. Three days later, a motion for a new trial was filed. In support of the motion it was asserted by defendant's counsel (1) that the date of trial had been " inadvertently overlooked" by defendant who could not get his son in court " until the court was charging the jury; " (2), " Because of after-discovered evidence, which the plaintiff by the utmost diligence, could not have discovered before this trial, in that he was informed after the trial, that in the court room on the day of the trial, the plaintiff, seeing Officer John Stevenson in court, who was a witness subpoenaed by defendant's...