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CUNNINGHAM v. JOSEPH HORNE COMPANY. (12/29/61)

December 29, 1961

CUNNINGHAM, APPELLANT,
v.
JOSEPH HORNE COMPANY.



Appeals, Nos. 158 and 159, March T., 1961From order of Court of Common Pleas of Allegheny County, July T., 1959, No. 3485, in case of Mary Margaret Cunningham et vir v. Joseph Horne Company et al. Order reversed.

COUNSEL

Alan N. Bloch, with him Wirtzman, Sikov and Love, for appellants.

Jack W. Plowman, with him Rose, Houston, Cooper and Schmidt, for appellees.

Gustav M. Berg, for appellee.

Before Bell, C. J., Musmanno, Jones, Cohen, Eagen and Alpern, JJ.

Author: Alpern

[ 406 Pa. Page 2]

OPINION BY JUSTICE ALPERN

This case involves the doctrine of election of remedies as applied to litigation in the field of "products liability," an increasingly important part of the negligence field. The court below sustained the defendants' preliminary objections to an action in assumpsit for breach of warranty on the ground of the pendency of a prior action, a trespass suit filed by the same plaintiffs arising out of the same accident. While alternative remedies were concededly available to the plaintiffs, the court held that an election could not be deferred until trial. The effect of the court's ruling is to require an election at the time of suit.

The accident which gave rise to the litigation occurred on December 25, 1958, when a flashlight storage battery, which was being inserted into an electrically operated toy, exploded in the hands of the woman plaintiff, causing particles to strike and injury her face and eyes. The battery had been purchased for the use made of it from Joseph Horne Company and had been manufactured and distributed by the other defendants.

Plaintiffs filed a complaint in trespass in the Court of Common Pleas of Allegheny County at No. 3484 July Term, 1959, alleging negligence. The defendants filed an answer to the trespass action denying liability.

The plaintiffs filed an action in assumpsit for breach of warranty against the same defendants at No. 3485 July Term, 1959. The defendants filed preliminary

[ 406 Pa. Page 3]

    objections to the assumpsit action raising the pendency of the prior action in trespass.*fn1 The court below dismissed the complaint in assumpsit because of the pendency of the trespass action. The decision is far-reaching since it requires plaintiffs to ...


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