Appeal, No. 152, Jan. T., 1953, from order of Court of Common Pleas No. 4 of Philadelphia County, June T., 1950, No. 6199, in case of James Devlin, Admr., Estate of Rosella Devlin, deceased v. Joseph Piechoski and Indemnity Insurance Company of North America. Order affirmed; reargument refused October 2, 1953.
George W. Alexander, Jr., with him D. T. Spagnoletti and Walter E. Alessandroni, for appellant.
Thomas Raeburn White, Jr., with him Thomas Raeburn White and White, Williams & Scott, for appellee.
Before Stern, C.j., Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE JONES
The plaintiff, James Devlin, administrator of the estate of Rosella Devlin, deceased, sued the defendant, Joseph Piechoski, in trespass for damages on two causes of action, viz., wrongful death and survival, growing out of the death of Rosella in the crash of an airplane which Piechoski was piloting by leave of the owner.
Piechoski having failed to appear, the prothonotary, upon praecipe, entered judgment for the plaintiff under Rule 1047 R.C.P. for want of an appearance and answer by the defendant. The quantum of the damages was later fixed by the court after a hearing in the sum of $21,474.16. The plaintiff issued an attachment-execution on the judgment, summoning as garnishee Indemnity Insurance Company of North America, the insurer in a policy issued to the owner covering operation of the airplane. The garnishee pleaded nulla bona, claiming that the policy did not cover the accident because it was not to apply "while any aircraft of the assured is operated in violation of Federal regulations for civil aviation applicable, inter alia, to minimum safe altitudes, and the accident in this case was caused by low flying in violation of said regulations as set forth in the complaint of the plaintiff, upon the basis of which judgment in this case was obtained." One of the specific averments of negligence contained in the plaintiff's complaint was that Piechoski was flying the plane at the time of the accident at an altitude of less than 500 feet in violation of the regulations.
The issues raised by the garnishee's plea were heard by the court below and a jury which returned a verdict for the plaintiff on the basis of three special findings. On the garnishee's motion, the court below in an opinion by the learned trial judge awarded a new trial on the ground that "the finding of the jury that the accident was not caused by the failure of the defendant to observe the minimum safe altitude regulations was against the weight of the evidence." From the order granting the new trial, the plaintiff has appealed. In the light of the pleadings and evidence, the appellant's burden in this court is a particularly heavy one. It is incumbent upon him to show that the action
of the court below constituted, in the circumstances, a palpable abuse of discretion: Bellettiere v. Philadelphia, 367 Pa. 638, 642, 81 A.2d 857.
On the issue of altitude, six disinterested eyewitnesses testified that the airplane had been flying immediately prior to the accident at a height of from 50 to 500 feet. The only person who testified to the contrary was Piechoski who, having absented himself from the trial of the negligence action, appeared as a witness for the plaintiff at the trial of the garnishment. He was, however, directly and seriously impeached. A police officer testified that Piechoski had told him shortly after the accident that he had been "fooling around" at about 500 feet which Piechoski denied having said. It is of course the rule, as we said in Carroll v. Pittsburgh, 368 Pa. 436, 445, 84 A.2d 505, that, -- "A new trial should not be granted because of a mere conflict in testimony or because the trial judge on the same facts would have arrived at a different conclusion.... Neither should it ordinarily be granted on the ground that the verdict was against the weight of the evidence where the evidence is conflicting and the jury might have found for either party...." But, here, there is evidence in the form of sworn averments in the plaintiff's complaint in the trespass action that Piechoski was flying below a 500-feet altitude at the time of and immediately preceding the accident. In a proceeding on an execution for the satisfaction of his judgment, the plaintiff is not at liberty to deny what he had affirmed in order to obtain the judgment: Builders Supply Company v. McCabe, 366 Pa. 322, 329, 77 A.2d 368; see also Commonwealth v. Monongahela Bridge Company, 216 Pa. 108, 115-116, 64 A. 909; and Wigmore on Evidence, Vol. IV, Third Ed., § 1064 (2), pp. 45-46. Nor is there any merit in the plaintiff's contention that he is not bound by his pleadings because
the judgment was taken by default. "So long as a judgment stands unreversed and unappealed from it may not be questioned in any other case. And the circumstance that there was no legal contest in reaching the judgment does not impair its effect. The modern decisions in England and in this country are at one on this point": Stradley v. Bath Portland Cement Company, 228 Pa. 108, 113, 77 A. 242; see also Exler v. Wickes Brothers, 263 Pa. 150, 154, 106 A. 233. Since the foregoing is true as to the effect of a judgment in a subsequent proceeding, it is, a fortiori, applicable as to the conclusive effect of a judgment in the proceeding in which it was entered. The only witness favorable to the plaintiff on the issue of the airplane's operational altitude prior to the accident was thus patently self-impeached.
We cannot, therefore, justly say that the learned court below was guilty of a palpable abuse of discretion in awarding a new trial on the ground that the cognate special finding, whereon, inter alia, the verdict for the plaintiff was based, was against the weight of the evidence.
It is unnecessary for us to consider or discuss the question raised by the plaintiff as to whether Endorsement No. 2 on the insurance policy had been effectuated at the time of the delivery of the policy by countersignature of an authorized agent as required by the endorsement. The executed policy, which was in the possession of the insured, could not be located prior to the submission of the case to the jury and therefore did not get into evidence at the trial. It was found, however, before the jury had rendered its verdict and both the trial judge and counsel were at once so notified. But, plainly enough, there was nothing that could be done in the circumstances with reference to the evident probative value of the policy. It obviously did not
qualify as after-discovered evidence within the legal signification of that term (McDermott v. Marlow, 336 Pa. 337, 9 A.2d 420) and the learned court below properly rejected it as a ground for the granting of a new trial. The appellant, therefore, has nothing to complain of on that score. As the case necessarily goes back for a retrial, it is not inappropriate to point out, in view of the plaintiff's former contention on the basis of the nonconformed specimen policy supplied by the garnishee, that the burden of ...