50 A.2d 670 | Pa. | 1946
Argued December 2, 1946. This was an action in trespass brought by Julia Samuels against Karl C. Johnson, Sr., and his minor son, Karl C. Johnson, Jr., to recover for personal injuries sustained when an automobile owned by the former and operated by the latter collided with an autobile owned and operated by Eugene W. Yost, in which she was riding as a passenger. Yost was brought upon the record as additional defendant in this action and a separate action was instituted by the Johnsons against Yost for personal injuries and property damage, in which action Yost filed a counterclaim.
These two actions and a third action brought by Charles A. Schweitzer and Catherine Schweitzer, his wife, also passengers in the Yost machine, against the Johnsons, original defendants, and Yost, additional defendant, were all tried together before one jury with the following results1: in Samuels v. Johnson,Sr., defendant, and Yost and Johnson, Jr., additional defendants, verdict for defendants; in Schweitzer andSchweitzer v. Johnson, Sr., defendant, and Yost and Johnson,Jr., additional defendants, verdict for defendants; in Johnson,Sr. and Johnson, Jr. v. Yost, verdict for Johnson, Sr., in the amount of $1200 and verdict for Johnson, Jr. in the amount of $100. Plaintiffs in the *626 Samuels and Schweitzer cases filed motions for a new trial which the court below granted as to all defendants. Yost also moved for a new trial in the action brought against him by the Johnsons, but the motion was later withdrawn and judgment on the verdict against him has since been paid and satisfied. Karl C. Johnson, Sr. and Karl C. Johnson, Jr. have appealed from the granting of a new trial as to them.
Appellants state: "The only question raised by these appeals is a legal one, namely, is the judgment in Johnson v. Yost, in favor of the Johnsons, determinative of their liability arising out of this accident." Clearly that judgment, unappealed from, is determinative of their liability in that action. It is not, however, determinative of their liability in this action.
The case relied upon by appellants as authority for the proposition that judgment in their favor in Johnson and Johnsonv. Yost is res judicata as to their negligence here, Barker v.Barrett,
In Fitzpatrick v. Sheppard,
The opinion granting the new trial states: "The passengers were not at fault. They were clearly entitled *628
to a verdict against Yost, against the Johnsons, or against both. Justice demands that the passenger plaintiffs be granted a new trial against all the defendants." The court below having concluded that justice requires a new trial as to all the defendants, its order to that effect will not be disturbed, in accordance with our usual practice in such cases: Brogan v.Philadelphia,
Appellants also complain that the order granting a new trial directed that this case be tried separately from the action brought by the Schweitzers. This was done for the reason, as stated in the opinion written by the trial judge, that "The trial of these cases has shown that the issues are too numerous and complicated to be tried together." This was a matter for the discretion of the court below, not reviewable on appeal. See Culver v. Lehigh Valley Transit Company,
Judgment affirmed.