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HILBERT v. ROTH. (03/20/59)

March 20, 1959

HILBERT, APPELLANT,
v.
ROTH.



Appeal, No. 52, Jan. T., 1959, from judgment of Court of Common Pleas of Lehigh County, Jan. T., 1955, No. 69, in case of Richard P. Hilbert v. Frederick Roth. Judgment affirmed.

COUNSEL

Jack E. Feinberg, with him Martin H. Philip and George M. Berg, for appellant.

David E. Mellenberg, with him Walker & Walker, for appellee.

Before Jones, C.j., Musmanno, Jones, Cohen and Mcbride, JJ.

Author: Mcbride

[ 395 Pa. Page 271]

OPINION BY MR. JUSTICE MCBRIDE

Plaintiff, Richard P. Hilbert, was injured when his automobile was struck by another car driven by Dale Rutz, who died as a result of the accident. At the time of the accident Rutz was unlawfully racing with the defendant Frederick Roth. Plaintiff sued the Rutz Estate for compensatory damages and Roth for both compensatory and punitive damages. The two cases were consolidated for trial. During the joint trial the trial judge felt that the awkwardness of the application of the dead man's rule only to the Rutz case required withdrawal of a juror as to Roth. The trial proceeded against the Rutz Estate resulting in a verdict for the plaintiff in the sum of $10,000. Judgment was entered on the verdict. Later it was paid and plaintiff caused the judgment to be marked satisfied of record.

Subsequent to the satisfaction of the judgment against the Rutz Estate, Roth, claiming that he was thereby discharged from liability, petitioned the court for an order directing discontinuance of the action against him. This order was granted. Thereafter, on plaintiff's petition, a rule was issued for reconsideration of the order of discontinuance. After hearing,

[ 395 Pa. Page 272]

    the court below reaffirmed its previous order and discharged the rule.

Plaintiff contends, on appeal, that under Sections 3 and 4 of the Uniform Contribution Among Tortfeasors Act of 1951, July 19, P.L. 1130 (12 P.S. §§ 2084, 2085) he is entitled to proceed against the defendant Roth.

It is clear that under the common law of Pennsylvania plaintiff could bring separate actions against several defendants for a joint trespass, obtain judgment against each and issue execution on the one he found most satisfactory; but once he received satisfaction, and either gave a release or satisfied the judgment of record, he could not thereafter execute or bring action against any other defendant. Fox v. Northern Liberties, 3 W. & S. 103; Seither v. Phila. Traction Co., 125 Pa. 397, 17 Atl. 338. The bar to the second suit has been held to apply not only where there was joint negligence, but in any case, whether negligence was joint, concurrent, or successive, in which the prior defendant was liable for the same injury. Thompson v. Fox, 326 Pa. 209, 192 Atl. 107.

The Contribution Among Tortfeasors Act defines "joint tort-feasor" as follows (12 P.S. § 2082): "For the purpose of this act, the term 'joint tort-feasors' means two or more persons jointly or severally liable in tort for the same injury to persons or property, ...


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