John R. Bredin, Dalzell, Pringle, Bredin & Martin, Pittsburgh, for appellant.
A. H. Rosenberg, Rosenberg & Rosenberg, Pittsburgh, for appellees.
Before Rhodes, P. J., and Hirt, Reno, Ross, Gunther, Wright and Woodside, JJ.
[ 174 Pa. Super. Page 567]
As a result of an automobile collision on July 12, 1949, co-plaintiff Nello and Irma Pasquinelli brought an action in trespass against defendant James Reed, Jr. Reed filed a counterclaim against co-plaintiff husband, Nello Pasquinelli. The following verdict was awarded after trial:
'And now, to wit: May 8, 1952, we, the Jurors empanelled in the above case, find Nello Pasquinelli and James Reed both guilty of negligence. As to Nello Pasquinelli's claim against James Reed, we find in favor of James Reed. This verdict absolves Mr. James Reed counter suit, and find against James Reed in his counterclaim. We reward Irma Pasquinelli the sum of $2000 compensation against James Reed.'
[ 174 Pa. Super. Page 568]
Judgment was entered July 7, 1952. Thereafter, Travelers Insurance Company, appellant herein, represented by petition to the court below that the company had paid judgment and costs, and prayed that the court enter judgment in its favor against Nello Pasquinelli, as joint tort-feasor, for one-half of the total judgment and costs. Act of June 24, 1939, P.L. 1075, 12 P.S. § 2081. The court below dismissed the petition by order and opinion filed May 8, 1953.
We disagree with the statement of the learned court below that appellant 'is not a party to this proceeding and hence not a proper party to bring any action whatsoever without the record disclosing its right and authority so to do.' The Supreme Court, in Goldman v. Mitchell-Fletcher Co., 1928, 292 Pa. 354, 141 A. 231, permitted a surety, upon satisfaction of a judgment against its insured, to intervene by petition and to seek contribution from its insured's joint tort-feasor. 'The general rule is well settled that if a surety has paid a debt, he is entitled to all the securities the creditor had against the principal debtor. If the claim be in judgment, he is entitled to be subrogated of record. Even if the judgment has been marked satisfied on the record, the surety paying is entitled to be subrogated.' Wright v. Grover & Baker Sewing Mach. Co., 82 Pa. 80; Lackawanna Trust & Safe Deposit Co. v. Gomeringer, 236 Pa. 179, 84 A. 757. Under principles too well established to be gainsaid appellee, having paid the judgments on which its principal was liable, is entitled to be subrogated to the plaintiffs' rights therein. * * *' 292 Pa. at page 357, 141 A. at page 232.
Appellant may not obtain contribution from the co-plaintiff in this action because there is no verdict or judgment establishing the fact of that co-plaintiff's liability. Defendant's correct procedure was prescribed in Fisher v. Diehl, 1944, 156 Pa. Super. 476, 40 A.2d 912, wherein, as in this case, husband and wife
[ 174 Pa. Super. Page 569]
had sued defendant. On page 483 of 156 Pa. Super., on page 916 of 40 A.2d, the Court said: '[May] the plaintiff's husband * * * be joined as an additional defendant in her action for personal injuries? * * * We think the decisions of the Supreme Court, in cases where the underlying facts are very similar, permit this to be done, provided that any judgment obtained against the husband, as additional defendant, may not ...