23 A.2d 333 | Pa. | 1941
Two of these appeals are from an order granting a new trial; the third is from the refusal of judgment n. o. v. The suit was brought November 10, 1938, and is governed by the sci. fa. acts in effect at that time and not by the Rules of Civil Procedure (2251 to 2275), effective September 4, 1939. The plaintiff sued Sylak. *488 Sylak brought in Openhart, as additional defendant, on averments that plaintiff's injury was caused by the negligence of Openhart or by the joint negligence of Sylak and Openhart. He then amended his writ by eliminating the charge of joint negligence. The jury found for plaintiff against Sylak, original defendant, and in favor of Openhart, added defendant. The learned trial judge granted defendant Sylak's motion for a new trial and certified that he did so because he thought he erred in his instruction to the jury that it could not render a joint verdict against the defendants.1
The plaintiff appeals and contends that, on this record, the instruction was correct and therefore it was error in law to order the case to be tried again. The added defendant Openhart appeals and repeats the same contention. The defendant Sylak appeals and assigns a single error — that his motion for judgment n. o. v. was refused.
The accident occurred at night while Openhart was driving a five passenger car with nine persons in it and the plaintiff standing on the left running board. The car was moving at about 15 miles an hour in second gear up hill on a straight country road, surfaced 16 feet wide, with a narrow berm on each side, when defendant Sylak's car was seen approaching from the opposite direction. The evidence on behalf of the plaintiff is that Openhart moved to the right as far as possible, perhaps as much as three feet from the center of the road, and that no part of plaintiff's body was projecting beyond the fenders and running board of Openhart's car. The cars sideswiped and the plaintiff was seriously injured. If the evidence on behalf of the defendant Sylak had been believed, the jury might have found that Sylak's car remained on its own half of the road and did *489 not get over on Openhart's side; but as the verdict was against Sylak, it must be treated, for the purpose of this review, as a rejection of Sylak's evidence and the adoption of the case made by the plaintiff.
The evidence makes it perfectly clear that (1) as between the plaintiff and Openhart, plaintiff was guilty of contributory negligence preventing recovery from Openhart;2 and (2) as between the plaintiff and Sylak, plaintiff's contributory negligence was for the jury.3
If Openhart's car was over on his half of the road, as witnesses testified, binding instructions for the defendant Sylak could not have been given because, in that view, the collision could only have occurred by his coming over on Openhart's side of the road. Sylak's assignment of error must therefore be overruled and his appeal dismissed.
The next inquiry is whether there was error of law, harmful to the defendant, Sylak, in instructing the jury that a joint verdict could not be returned. In considering this point, it is necessary to keep in mind that plaintiff's contributory negligence made it impossible for him to recover on a verdict against Openhart. It must also be remembered that plaintiff is not complaining of the instruction; the question is, Can the defendant complain of it on the present record? Sylak's præcipe for the sci. fa. was his statement of claim4
against Openhart; *490
it contained no averments of the transaction resulting in plaintiff's injury but pleaded conclusions of law with respect to the transaction set forth in plaintiff's statement of claim. When Sylak amended his præcipe by eliminating the averment of join liability, the issue between him and Openhart was whether Openhart alone was liable; it would of course have been a defense to plaintiff's suit against Sylak that somebody else caused the damage and, on proof of it, Sylak would have been entitled to a verdict. If he had not amended and had proved his joint liability averment the jury would have had the power to determine in the same verdict that Openhart was liable to contribute to Sylak. Compare Maio v. Fahs,
Sylak was not entitled to insist on more than he had pleaded. If, for reasons which he considered sufficient, he eliminated the averment of joint liability, there remained no issue between him and Openhart. While the case is to be determined under the statutes in effect prior to the adoption of the new Rules, it may be noted that even under the Rules, which are more specific than the statutes were, we have held that if a defendant avers the sole liability of an added defendant and the plaintiff does not file a supplementary statement against the added defendant as permitted by Rule 2258, the court may dismiss the added defendant because no issue between him and the defendant remains to be tried: Davidson v. Patterson,
Sylak, as appellee in plaintiff's appeal, suggests that on the authority of Majewski v. Lempka,
Defendant also referred to Abraham v. National Biscuit Co.,
The defendant, as appellee in plaintiff's appeal, contends the new trial was properly granted on another ground. The learned trial judge, over defendant's objection, allowed plaintiff to read in evidence, as an admission by defendant, the præcipe originally filed by defendant to bring in Openhart as additional defendant on the averment of joint liability; to meet the effect of this, Sylak was allowed to read his amended præcipe charging the additional defendant with sole liability. The relevant words of the writ were, "And whereas the defendant in said suit alleges that John Openhart . . . is alone liable over to said plaintiff, or is jointly liable with said defendant, for the cause of action declared on in said suit, for the whole, or a stated part, of any amount which may be recovered therein against said defendant, by reason of the fact that he, the said John Openhart, carelessly, recklessly and negligently operated a certain Ford Sedan automobile resulting in the damage alleged to have been sustained by the plaintiff, . . ." The præcipe stated: "It is therefore alleged that all of the damage claimed by the plaintiff was caused by and through the carelessness, negligence and recklessness of the said John Openhart as herein set forth or by the joint negligence of the said John Openhart and the defendant, Charles Sylak."
The general rule is that admissions of fact in pleadings are admissible, but that the pleader's conclusions of law are not admissions of facts in issue. Whether *493
an allegation is of fact or law is determined by the context disclosing the circumstances and purpose of the allegation. In perhaps the broad sense, the statement that a party is liable to another is a statement of fact, but the same words are in general use as a statement of law, and when intended to be so used the statement may not be treated as an admission of fact. In Schuster v. Largman,
Under the old pleading, a plaintiff could not use one plea of a defendant as evidence of a fact denied by him in another plea.7 In Snyder v. Rainey,
Third party procedure under the sci. fa. acts and under the Rules of Civil Procedure provide for stating alternative and apparently inconsistent conclusions of law;8 without them, the purposes9 of the procedure *494 could not be made effective; but the pleader's statement of the alternative conclusions of law may not be used as admissions of issuable facts. The writ read in evidence should have been excluded.10 But we are satisfied from our examination of the record that defendant was not harmed by what was done.
It is unnecessary to discuss appellant Sylak's contention based on Section 1023,11 entitled "Tampering with Vehicles," of the Motor Vehicle Code of 1929, P. L. 905, 984, as amended by the Acts of July 16, 1935, P. L. 1056, and June 29, 1937, P. L. 2329, 75 PS section 632; it has been held to apply to trespassers. Harris v. Seiavitch,
We sustain plaintiff-appellant's assignment of error, and for the same reasons, the assignment filed by Openhart. The order granting a new trial is reversed and *495 the record is remitted to the end that judgment against the defendant, Sylak, and in favor of the plaintiff, may be entered on the verdict.