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SMITH v. EHLER (ET AL. (11/20/50)

November 20, 1950

SMITH, ADMR., ET AL.,
v.
EHLER (ET AL., APPELLANT)



Appeals, Nos. 224 and 225, March T., 1950, from judgment of Court of Common Pleas of Allegheny County, Oct. T., 1948, No. 340, in case of Walter J. Smith, Admr., Estate of Margaret Ellen Smith, Deceased et al. v. Alvina Ehler et al., trading as Ehler's et al. Judgment reversed; reargument refused December 18, 1950.

COUNSEL

Joseph S. D. Christof, with him Thomas D. McCloskey, Joseph R. Doherty, and Philip X. Ley, for defendant, appellant.

Ira R. Hill, with him Reed, Smith, Shaw & McClay, for Alvina Ehler et al., defendants, appellees.

Edward O. Spotts, Jr., with him James P. Ifft, Jr., for plaintiffs, appellees.

Before Drew, C.j., Stern, Stearne, Jones, Ladner and Chidsey, JJ.

Author: Ladner

[ 366 Pa. Page 112]

OPINION BY MR. JUSTICE LADNER

The plaintiff, Walter J. Smith, is the administrator of the estate of Margaret Ellen Smith, and brought an action in trespass for the recovery of damages for the death of said Margaret Ellen Smith, caused by a collision between the bicycle which she was riding and an automobile driven by the defendant, Harry W. Fowler, Jr., a minor. Plaintiffs' decedent had hired the bicycle she was riding from Alvina Ehler and Stanford J. Ehler, trading as Ehlers, the proprietors of a bicycle concession in North Park, near Pittsburgh. The plaintiff brought suit against the Ehlers and the minor defendant, Fowler, Jr. The complaint charged negligence on the part of the Ehlers in renting to the decedent a defective bicycle and charged negligence on the part of the minor defendant in the improper operation of the motor vehicle and excessive speed.

The trial resulted in a verdict which was written on a jury slip under a caption which contained the names of the plaintiff and all of the defendants. It read, "And now, to wit: February 7, 1950, we the Jurors empanelled in the above entitled case, find Plaintiff $20,000." Signed "Kathryn Peffer, Foreman." The verdict in this form was accepted by the court and recorded. The Prothonotary naturally indexed this verdict as rendered against all the defendants. In the brief filed by counsel for the Ehlers, it is stated that several days later he learned of the entry of the verdict and called the matter to the attention of the trial judge who in his presence and in the presence of

[ 366 Pa. Page 113]

    the clerks of the court added to the written verdict slip, above the signature of the foreman, the following additional words, "compulsory non suit as to Mr. & Mrs. Ehlers, doing business as Ehlers nunc pro tunc as to Febr. 7, 1950." No notice of the application to the trial judge was given to other counsel.

Counsel for the minor defendant, Fowler, Jr., filed a motion for judgment n.o.v. and one for a new trial. The court below dismissed the motion for judgment n.o.v., refused the new trial, but reduced the verdict from $20,000 to $10,000. From these orders counsel for the minor defendant, Fowler, Jr., filed two appeals, one, no. 224, being from the order of the court refusing judgment n.o.v. and the other, no. 225, from the order of the court refusing a new trial. We have concluded there must be a new trial in this case as against all of the defendants because of the irregularity in the alteration of the verdict and in view of that conclusion we dismiss the appeal no. 224 from the order of the court refusing judgment n.o.v. As to appeal no. 225, the new trial must be granted because the learned judge below lacked the power to alter the jury's verdict by adding an entry of a non-suit as against two of the defendants "nunc pro tunc."

The record before us shows that at the conclusion of the plaintiffs' case, counsel for the defendant, Harry Fowler, Jr., moved the court to enter a non-suit on the ground, first, that the evidence showed that the plaintiff was guilty of contributory negligence, second, on the basis that the plaintiff's evidence has failed to disclose any negligence on the part of the defendant, Harry Fowler, Jr., which caused or contributed to the accident, and third, because the proximate legal cause of the accident was the operation of the bicycle and not ...


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