Murray Et Ux. v. LavinskyMurray Et Ux. v. Lavinsky
Opinion by
The appellant has not seen fit to print all the testimony in the record, nor all of the lower court’s charge. We take this as an admission that there was evidence *394 supporting the verdicts in favor of the plaintiffs against аppellant, the original defendant, and that he has no fault to find with the chаrge of the court except its ruling that there could be no verdict in favоr of the wife plaintiff against the added defendant.
The appellant, on being summoned as the original defendant, had Simon August brought in by scire facias, under thе Act of June 22, 1931, P. L. 663, as an additional defendant, on the allegation that he, August, wаs alone liable to the plaintiffs for the cause of action declared on. As August, the additional defendant was the employer of the wife plaintiff, in whose service and employment she was engaged when injured, and thеy had, in effect, elected to come within the Workmen’s Compensatiоn Act, it followed that the wife plaintiff
1
could not, in any event, have a verdict in this action against the additional defendant. If the additional defendant’s driver was not negligent, there could, of course, be no verdict rendered against him. On the other hand, if said driver was negligent, whether alone or jointly with the originаl defendant, the wife
plaintiff
could not recover in trespass against the additiоnal defendant but would be remitted to her claim for workmen’s compensation. The case is governed by the very recent decision of the Supreme Court in Jackson v. Gleason,
Had the original defendant brought in the additional defendant by scire facias, alleging that the latter was
*395
liable over to Mm for the сause of action declared on or jointly liable therefor with him, a different situation would have been presented, and, if the facts in evidencе warranted, the case would have been ruled by the decision of the Suрreme Court, in Koontz v. Messer et al.,
By the provisions of the Act of April 10, 1929, P. L. 479, and its amendments of June 22, 1931, P. L. 663, and May 18, 1933, P. L. 807, the cause of action, as to which the original defendant may bring in, by scire facias proceedings, an additional defеndant, must be that declared on by the plaintiff in the action against the original defendant. But, by the decision in Koontz v. Messer, the original defendant may, on suсh cause of action, in certain circumstances, have verdict аnd judgment against the additional defendant even though, because of some statute or policy of the law, the plaintiff could not have sued him nor hаd verdict and judgment against him. But the scire facias proceedings do not аffect, in any way, the right of the plaintiff to proceed in her action against the original defendant the same as she might have done before the scire facias acts were passed.
The judgment is affirmed.
Notes
The Act of May 8, 1895, P. L. 54, directs that the rights of action of husband and wife in trespass for personal injury to the wife, shall be redressed in only one suit brought in their joint names.