Appeals, Nos. 25 and 26, March T., 1950, from judgment of Court of Common Pleas of Lawrence County, Dec. T., 1947, No. 15, in case of Tony Mazi v. W. S. McAnlis et al. Judgment affirmed.
Roy M. Jamison, with him Robert E. Jamison and Jamison & Jamison, for appellants.
Marvin D. Power, with him Michael A. Barletta and Margiotti & Casey, for appellee.
Before Drew, C.j., Stern, Stearne, Jones and Bell, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
These appeals are by two defendants from a judgment in a trespass action following a personal injury
by automobile. It is contended that the court below erred in (1) striking off a directed verdict for defendants and granting a new trial, (2) its refusal of motions for judgment for defendant non obstante veredicto and (3) its refusal of defendants' motion for new trial.
When the case was called for trial plaintiff did not appear, although his record counsel was present and acted. The trial judge directed a verdict for defendants, to which counsel excepted. It subsequently appeared that prior to the date specially fixed for trial plaintiff had discharged his attorney. There was a misunderstanding between plaintiff and his lawyer whether the trial was to proceed as scheduled or whether it had been postponed. Counsel conferred with the judge by telephone in plaintiff's presence and plaintiff consulted the prothonotary. It is not seriously questioned that plaintiff understood that the trial had been continued, which constituted his reason for his non-appearance. Plaintiff's present counsel promptly moved for a new trial and made a motion to strike off the directed verdict. Both motions were granted by the court.
In its written opinion granting the motions the court quoted Rule 218 of the Pennsylvania Rules of Civil Procedure, which reads as follows: "When a case is called for trial, if one party is ready and the other is not, without satisfactory excuse being made known to the court, a non-suit may be entered on motion of the defendant...."
The court was of opinion, and so decided, that it was error for it to have directed a verdict for defendant instead of entering a non-suit. This is the correct interpretation of the rule. The court correctly struck off the entry of judgment. Cf. Farmers Trust Company v. Alexander, 334 Pa. 434, 6 ...