Mosier v. Wolverton

224 Pa. 597 | Pa. | 1909

Opinion by

Mr. Justice Mestbezat,

H. Cassale Mosier brought an action of trespass for an assault and battery against Runyon Wolverton to June Term, 1904, of the court of common pleas No. 2 of Philadelphia county. She also brought a similar action against Charles R. Hamilton to June Term, 1904, of the court of common pleas No. 5 of Philadelphia county. Pleas were duly filed and both cases were put at issue on the pleadings in the respective courts. On May 4, 1905, by a writing signed by counsel for the parties it was agreed that the cases should be tried together, when reached, in the court of common pleas No. 2, “the jury by its verdict to find separately with respect to the liability of each of the defendants.”

The plaintiff in the above actions brought another suit in trespass for an assault and battery committed on the same occasion against Florence W. Hamilton to June Term, 1906, in the court of common pleas No. 3 of Philadelphia county which was subsequently put at issue by a proper plea in that court. On June 25, 1907, by a writing signed by counsel for the parties, it was agreed that this case should be tried with the case of Runyon Wolverton when that case was reached in the court of common pleas No. 2, “the jury by its verdict to find separately with respect to the liability, if any, of each of the defendants.” It thus appears by the stipulation of counsel for the parties filed of record that the three cases were to be tried together in the court of common pleas No 2 and that the jury was to render a verdict in each of the three cases, “ finding separately with respect to the liability of each of the defendants.”

The cases were called for trial in common pleas No. 2 on October 21, 1908, but were continued, the court making an order that “the three issues involved in the cases entitled as above” should be tried on November 2, 1908. On the last-named day the cases were again called for trial when ’ the minutes of the court show the following to have occurred: “Counsel for plaintiff and defendants move the court that these three cases be tried together. The Court: Do you agree to that? Mr. Shields:' Yes, sir. Mr. Monihan: Yes sir; we agree.” The trial of the three causes proceeded and resulted in a “verdict for plaintiff for $2,500” without any separate verdict being rendered in the three cases. A motion for a new trial was made by the defendants which was subsequently discharged, and the court directed that judgment be “entered in favor of the plaintiff and against the defendants in the sum of $2,500.” In the case against Charles R. Hamilton the docket entries show, as of November 5, 1908, a “verdict for plaintiff, $2,500;” and subsequently the entry of judgment on the verdict. In the case against Wolverton the docket entries of November 5, 1908 show the following: “for verdict C. P. 2, J. ’04, 2516;” and that judgment was subsequently entered on the verdict. The docket entries in the case against Florence W. Hamilton are the same as those in the Wolverton case.

An appeal has been taken in each case by the defendant. The only assignment that need be considered is the one alleging error in the entry of judgment against the parties. It is clear that the learned trial judge misapprehended the intention of the parties as well as their agreement when he permitted a single verdict “for the plaintiff” in the trial of the three causes, and in not directing the jury to return a separate verdict in each case. The court in receiving the verdict and entering judgment treated the three causes as having been consolidated into one and tried as such, whereas the record discloses that the parties at no time intended that the cases should be consolidated into one cause or tried as one cause. As suggested in the appellee’s brief, “the whole affair (out of which the actions arose) occurred within a short space of time and was one continuous transaction;” but instead of regarding the defendants as joint tort feasors and bringing one action for the assault and battery, the plaintiff elected to separate them and brought three distinct and separate actions against the three defendants. Separate pleas were filed and separate issues framed in the cases, and it was agreed “that these three cases be tried together,” and not as one cause brought by the plaintiff against the three parties as joint tort feasors. The plaintiff gave no indication that he intended that the three cases should be consolidated and that one verdict and one judgment should be entered against the three parties jointly. No such intention appears in any of the proceedings until the court permitted a single verdict and entered a joint judgment thereon. This was not permissible under the pleadings nor by any agreement of the parties disclosed by the record. During the trial of the causes the court recognized that they were separate actions being tried together. On one occasion the judge in making a ruling said: “This testimony is in all three cases, so that an exception here goes to all three.” Again the learned judge said: “We are trying three cases. Every ruling I make applies to the three cases. If it is error as to one it may be corrected as to the other two.”

Notwithstanding the contention of the appellee to the contrary, the records disclose a judgment entered in each case in the sum of $2,500. The record will not support these judgments. The verdict returned by the jury was “for the plaintiff” which entitled the plaintiff to a judgment against each of the defendants in the separate actions. The order, however, made by the learned trial judge directed one judgment on the verdict in favor of the plaintiff and against the defendants jointly. This could not be done on the verdict rendered which required a separate judgment to be entered against the three defendants in the several cases. We concede, as was admitted on the argument, that it was not the intention that a judgment for $2,500 should be entered against each of the defendants. In fact, the statement in the case against Florence W. Hamilton claims only $1,000. Of course there was no authority for the prothonotary entering the judgment, as the docket entries disclose he did, against each of the defendants for $2,500. The order of the court was that a judgment should be entered in favor of the plaintiff against the three defendants jointly for that sum. This was error which requires a reversal of the judgment in the three several causes.

The judgment in each of the cases against Runyon Wolverton, Charles R. Hamilton, and Florence W. Hamilton is reversed, and a venire facias de novo awarded.