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SABER v. SUPPLEE-WILLS-JONES MILK CO. (07/17/56)

July 17, 1956

SABER, APPELLANT,
v.
SUPPLEE-WILLS-JONES MILK CO.



Appeal, No. 41, Oct. T., 1955, from judgment of Municipal Court of Philadelphia County, Jan. T., 1954, No. 907, in case of Daniel Saber v. Supplee-Wills-Jones Milk Co. Judgment affirmed.

COUNSEL

W. T. Adis, with him James C. Crumlish, Jr., and Davis, Marshall & Crumlish, for appellant.

Arthur E. Newbold, III, with him Owen B. Rhoads, and Barnes, Dechert, Price, Myers & Rhoads, for appellee.

Before Hirt, Gunther, Wright, Woodside, Ervin, and Carr, JJ. (rhodes, P.j., absent).

Author: Wright

[ 181 Pa. Super. Page 168]

OPINION BY WRIGHT, J.

On August 12, 1952, the motor vehicle of Daniel Saber was struck by a truck negligently operated by an employe of Supplee-Wills-Jones Milk Company, hereinafter referred to as the Company. On August 25, 1952, Saber received the sum of $277.50 ($327.50 less $50.00 deductible) from his collision insurance carrier, Universal Insurance Company, hereinafter referred to as Universal. In consideration of this reimbursement for his property damage, Saber gave Universal a "loan receipt".

On September 17, 1952, Attorney C. advised the Company by letter that he represented Saber in his claim for damages. On October 24, 1952, Attorney B.

[ 181 Pa. Super. Page 169]

    instituted a suit for Saber against the Company to recover personal injury damages only. On November 18, 1953, following trial on the merits, the said suit resulted in a verdict for plaintiff in the sum of $250.00. Judgment was entered on the verdict on December 15, 1953, and satisfied of record on December 30, 1953.

On January 27, 1954, Attorney C. instituted the present action against the Company in Saber's name*fn1 to recover the $327.50 property damage. The Company filed an answer with new matter averring the prior suit and satisfaction of the judgment recovered therein. Admitting this averment, Saber replied that he was merely the nominal plaintiff in the present action, that the real party in interest was Universal, and that notice of Universal's subrogation rights had been given by means of the letter of September 17, 1952. The Company then moved for judgment on the pleadings. As a result of this motion, judgment was entered for the defendant Company on July 19, 1954. This appeal followed.

Appellant concedes that a single negligent act causing an injury to both person and property of the same individual gives rise to but one cause of action with separate items of damage, but contends that "a recovery for either item of damage does not bar an action to recover the other item of damage where there is subrogation under an insurance policy contract". In Fields v. Philadelphia Rapid Transit Co., 273 Pa. 282, 117 A. 59, Mr. Justice SADLER said:

"The question raised by the record concerns the right to maintain separate proceedings for injuries to property and person, where the same event has caused losses to ...


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