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HEGMANN v. MITCHELL. (07/21/55)


July 21, 1955


Appeal, No. 29, April T., 1955, from judgment of Court of Common Pleas of Washington County, Feb. T., 1954, No. 97, in case of Robert J. Hegmann v. Baird Mitchell, trading as Mitchell & Craft. Judgment reversed.


Samuel L. Rodgers, with him Ceisler & Rodgers, for appellant.

Alexander W. Acheson, with him William C. Porter, for appellee.

Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.

Author: Ervin

[ 179 Pa. Super. Page 124]


This is an appeal from the decree of the lower court granting defendant's motion for judgment n.o.v. in a suit in trespass against the defendant for tortious conversion of a stock certificate owned by plaintiff and his wife as tenants by the entireties. Plaintiff having won the verdict, we must consider the facts and inferences most strongly in his favor. Matrimonial difficulties had occurred between the plaintiff and his wife and divorce proceedings were about to be instituted by the wife. Plaintiff endorsed in blank the certificate in question, being No. S41998 for 390 shares of National Securities Series, and gave it to his wife for the purpose of selling it and dividing the proceeds equally between them. The wife took the certificate to the defendant, a stockbroker, and told him to have it reissued to herself and her daughter by a former marriage, Betty Winslow, and endorsed the certificate in defendant's presence. She took the certificate to a bank

[ 179 Pa. Super. Page 125]

    and had the signatures guaranteed and then returned it to the defendant. The defendant then filled in the names of the wife and her daughter as assignees over the endorsements of the plaintiff and wife. Plaintiff, having learned of the intention to have the stock transferred to his wife and her daughter, informed the defendant that he never intended to transfer it to his wife and stepdaughter. Plaintiff wrote the transfer agent, notifying it that he had revoked his endorsement of the certificate. Thereafter the marital situation of plaintiff and his wife improved and they agreed that the stock certificate should be reissued in their original ownership. The wife thereafter told defendant to reissue the stock to the wife and her husband. The defendant requested plaintiff to lift his revocation with the transfer agent, which plaintiff did. Thereafter defendant, upon instructions from the wife, forwarded the certificate to the transfer agent with instructions to reissue the certificate to the wife and her daughter, which was done. The wife and her daughter still hold the new certificate for the stock. Thereafter plaintiff and his wife entered into a family settlement for their joint properties, enumerating the joint properties still held in both names but not including the certificate which was now held in the names of the wife and her daughter.*fn1

[ 179 Pa. Super. Page 126]

Prior to 1951 the law in Pennsylvania was that the release of one of two joint tortfeasors released the other. Thompson v. Fox, 326 Pa. 209, 212, 213, 192 A.

[ 179 Pa. Super. Page 127107]

; Union of Russian Societies v. Koss, 348 Pa. 574, 577, 578, 36 A.2d 433; Koller v. Pa. R.R. Co., 351 Pa. 60, 65, 40 A.2d 89; Girard Tr. Corn Bk. v. Reliable Motors, 176 Pa. Superior Ct. 300, 301, 302, 106 A.2d 670.

The Act of July 19, 1951, P.L. 1130, 12 PS § 20822089, radically changed the law of Pennsylvania. Section 4 provides: "A release by the injured person of one joint tortfeasor, whether before or after judgment, does not discharge the other tortfeasors unless the release so provides, but reduces the claim against the other tortfeasors in the amount of the consideration paid for the release or in any amount or proportion by which the release provides that the total claim shall be reduced if greater than the consideration paid."*fn2

The act applies to this case because all of the facts occurred subsequent to the effective date of the act. Apparently the lower court's attention was not called to this act. We cannot determine from the evidence which was admitted whether the $2,500.00 consideration mentioned in the release of September 4, 1952 related to Certificate No. S41998 for 390 shares of the National Securities Series and, if it did, whether it completely compensated plaintiff for his $1,216.80 loss, or whether it only partially compensated him for this loss. The lower court sustained objections to all the evidence relating to these questions. If the lower court had been informed of the change in the law effected by the 1951 act, we believe that these rulings

[ 179 Pa. Super. Page 128]

    would have been otherwise and some evidence might have been given to assist the jury in a determination of the important factual issues necessary for a proper application of the 1951 act. The facts and circumstances existing at the time of the execution of the release are admissible to show what the parties had in mind where the language of the release is general in terms. Sturgeon v. Ely, 6 Pa. 406, 409; Flaccus v. Wood, 260 Pa. 161, 167, 103 A. 549; Brill's Estate, 337 Pa. 525, 527, 528, 12 A.2d 50; Lipsie v. Dickey, 375 Pa. 230, 234, 235, 100 A.2d 370.

Our disposition of this appeal makes it unnecessary to consider the other questions which were argued.

The defendant's motion for a new trial was overruled by the lower court. Defendant's motion for judgment n.o.v. was granted by that court, from which the appellant (plaintiff below) took this appeal. While the motion for the new trial is not specifically before us, this Court is authorized by paragraph 8 of § 8 of the Act of June 24, 1895, P.L. 212, 17 PS § 192, inter alia, to "affirm, reverse, amend or modify any order, judgment or decree as it may think to be just, or it may return the record for further proceedings in the court below." Furer v. May, Jr., 115 Pa. Superior Ct. 28, 36, 174 A. 630; Cooper v. Philadelphia et al., 178 Pa. Superior Ct. 205, 115 A.2d 849.In this case we are of the opinion that a new trial well might have been granted in the court below for an unequivocal development of the facts and their submission under proper instructions.


Judgment reversed with a venire.

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