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DALY v. BUTERBAUGH (ET AL. (10/07/64)

decided: October 7, 1964.

DALY
v.
BUTERBAUGH (ET AL., APPELLANT)



Appeal from judgment of Court of Common Pleas of Erie County, Sept. T., 1961, No. 417, in case of Nancy Daly and Donald Daly, her husband, v. Edward B. Buterbaugh, Albert Barrows, Gibralter Enterprises, Inc. et al.

COUNSEL

John G. Gent, with him Curtze, Gent & McCullough, for appellant.

John M. Wolford, with him Isaac J. Silin, and Dunn & Wolford, and Silin, Eckert & Burke, for appellees.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Chief Justice Bell concurs in the result. Mr. Justice Eagen would remand the record to the court below with directions to dispose of the pending motion to strike. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Musmanno joins in this dissenting opinion.

Author: Jones

[ 416 Pa. Page 525]

On December 31, 1960, at approximately 11:20 p.m., Nancy Daly was a passenger in a motor vehicle owned and then being operated by her husband, Donald Daly (Daly), in a northerly direction on Liberty Street, Erie, a through street. Liberty Street is intersected by Eleventh Street, a one way street for vehicular traffic proceeding in an easterly direction, and, at that intersection, a stop sign is located which requires Eleventh Street vehicular traffic to stop before entering Liberty Street. As Daly's motor vehicle entered this intersection, it was struck by a motor vehicle, owned and then operated by Edward Buterbaugh (Buterbaugh), which had been traveling in an easterly direction on Eleventh Street. As a result of this collision, both Nancy Daly and Daly sustained personal injuries.

To recover their several damages sustained in this accident, Nancy Daly and Daly instituted joint trespass actions in the Court of Common Pleas of Erie County against Buterbaugh and Buterbaugh then secured a severance of the actions and joined Daly as an additional defendant in the Nancy Daly-Buterbaugh action.*fn1 After issue joined, the matter came on for trial before a court and jury and the jury returned the following verdict: "We . . . do find for the Plaintiff [Nancy Daly] and recommend compensation for pain

[ 416 Pa. Page 526]

    for the amount of $16,000.00 and compensation for permanent changes for an amount of $30,000.00."*fn2 Daly moved for both a new trial and judgment n.o.v.; Buterbaugh filed no post-trial motions and a judgment on the verdict in favor of Nancy Daly against Buterbaugh was entered.*fn3 During the pendency of Daly's post-trial motions, upon the petition of the Keystone Insurance Company (Buterbaugh's insurance carrier), the court directed, inter alia, that Keystone should pay to Nancy Daly $7,902 and, by such payment, be exonerated and discharged from its policy obligation for payment of Nancy Daly's judgment against Buterbaugh but that court order expressly provided that such payment would not "constitute an exoneration or discharge of the personal obligation of [Buterbaugh] arising out of the [Nancy Daly] judgment" and said judgment was not by such payment satisfied. Sometime thereafter, Daly's post-trial motions were dismissed and the prothonotary directed to enter judgment on the verdict. The judgment as entered on August 28, 1963, reads: ". . . judgment in favor of Nancy Daly against Donald Daly, additional defendant, in the amount of the verdict $46,000.00 plus int. from date thereof October 18, 1962. . . ." From that judgment this appeal is taken.

Three questions are raised upon this appeal:*fn4 (1) whether the entry of judgment in this trespass action in favor of the wife, Nancy Daly, against her husband, Daly, was valid? (2) whether the court below erred "in directing judgment in favor of [Buterbaugh] original defendant, against [Daly], the additional defendant husband when [Buterbaugh] had paid less than his

[ 416 Pa. Page 527]

    pro rata share of the verdict and judgment entered against him and no claim for relief for contribution was requested by [Buterbaugh]?"*fn5 (3) whether a new trial should be granted because of certain allegedly improper remarks by Nancy Daly's counsel in his jury summation?

At the outset, Nancy Daly's counsel contends that the first question, i.e., that question which attacks the validity of the Nancy Daly-Daly judgment, is improperly before this Court because it was not raised in the court below. It is clear that questions which could have been but were not raised in the court below need not be considered on appeal: Clark v. Rutecki, 408 Pa. 25, 182 A.2d 687. To this contention Daly's counsel answers that it was not until disposition of the post-trial motions and the entry of the judgment under direction of the court below that the invalidity of this judgment appeared. In other words, Daly's counsel assumed -- with some justification -- that the judgment directed to be entered would be in favor of Nancy Daly against Buterbaugh, original defendant, and Daly, additional defendant, and not in favor of Nancy Daly against Daly, additional defendant. We believe that Daly's counsel's position has merit. The attack on the validity of the judgment as entered could not have been raised at any other stage of the proceeding and the error complained of may be considered "basic and fundamental" within the rationale of McDonald v. Ferrebee, 366 Pa. 543, 547, 79 A.2d 232, and Giannone v. Reale, 333 Pa. 21, 24, 3 A.2d 331.

Daly first attacks the validity of the judgment entered against him in favor of Nancy Daly and the thrust of this attack is that the entry of such judgment accomplishes a result proscribed by the law in this Commonwealth, i.e., that it grants a wife the right

[ 416 Pa. Page 528]

    his employment; upon the theory that the husband-employee was liable over to his employers, the husband was brought upon the record as an additional defendant; the jury returned a verdict in favor of the wife against the employers and in favor of the employers against the husband-employee. We held that the wife, on the theory of respondeat superior, could sue the employers of her husband even though she could not sue her husband and that the personal immunity of the husband from suit by his wife did not prevent him, as an additional defendant, from being liable to answer, by way of contribution, to the third parties sued by the wife. Koontz is presently pertinent in two respects: (a) the joinder of the husband as an additional defendant, potentially liable by way of contribution to the third party-original defendant, is proper even where the suit against the third party-original defendant is by the wife; (b) even though the husband be joined as an additional defendant, such joinder does not enlarge the right of the wife to recover damages because, as this Court said: "Plaintiff [the wife] has had and could have no recovery against her husband, although the latter is joined as additional defendant". (p. 494).

Fisher v. Diehl, 156 Pa. Superior Ct. 476, 40 A.2d 912, presented a situation almost identical to the instant situation. In Fisher, a wife and husband instituted a trespass action against a third party to recover damages resulting from a collision between the husband's motor vehicle, then operated by him, and a truck owned by the third party and then operated by the third party's employee. The third party requested a severance of the actions and a joinder of the husband as an additional defendant, the latter on the theory that the husband was solely or, in the alternative, jointly liable for the accident. The court below granted both the requested severance of the actions and

[ 416 Pa. Page 530]

    the joinder of the husband as an additional defendant.*fn7 At trial, the jury returned a verdict against both the third party and the husband. On appeal, the sole question at issue was the propriety of the joinder of the husband as an additional defendant. In ruling that such joinder was proper, the late President Judge Keller stated: "The action of the court below was not equivalent to permitting an action by the wife against her husband. Her husband is not a party defendant to the action as far as she is concerned. The judgment against him, as restricted by the Court,*fn8 is not enforceable by her, nor does it enure to her benefit. It is simply a judgment enuring to the benefit of the original defendant if he pays or is required to pay the wife's judgment; and it then requires the husband to pay to the original defendant only one-half of the damages paid by the latter as a result of the joint negligence of both." (pp. 483, 484). The Court held the joinder of the husband as additional defendant was proper and the judgment against both the third party and the husband should be affirmed subject, however, to the provision that "no execution be issued by the plaintiff [the wife] on the judgment entered against the additional defendant [the husband], 'so that the wife may recover only from the original defendant, [the third party], and that the [third party], original defendant, may obtain only contribution from [the husband]'." (p. 487). By the application of Fisher to the case at bar, Nancy Daly could recover only on her judgment against Buterbaugh and Buterbaugh could

[ 416 Pa. Page 531]

    recover only by way of contribution against Daly but, in no event, could Nancy Daly recover on the judgment against Daly.

In Kiser v. Schlosser, 389 Pa. 131, 132 A.2d 344, a wife instituted an action to recover damages for personal injuries against a third party, who in turn joined the husband as an additional defendant; the jury, inter alia, returned a verdict in favor of the wife against her husband alone. We said (p. 133): "The court en banc recognized that although [the husband] was properly joined as a defendant for purposes of contribution in the action by his wife against [the third party], he [the husband] could not be directly liable to his wife. The court concluded, nevertheless, that the error was not prejudicial to the [husband and wife], and could be corrected by striking the verdict in favor of [the wife] against her husband from the record. We agree with this disposition of the issue. [citing Koontz and Fisher ]."

In Meisel v. Little, 407 Pa. 546, supra, Janet Meisel, then unmarried, was a passenger in a motor vehicle operated by Wayne Little when Little's vehicle was involved in an accident with another vehicle operated by a third party. Ten months later Janet Meisel married Little and, sometime thereafter, she sued Little as an original defendant alleging that his negligence was the cause of the accident. Little moved for judgment on the pleadings which judgment the court granted. On appeal, this Court stated the issue: may a wife maintain an action against her husband for personal injuries caused by a tort committed by the husband prior to the marriage? In affirming the judgment entered by the court below, we held that the rule that a wife could not maintain an action for personal injuries against her husband for a tort caused by the latter was both "statutory and decisional" and that such rule "has been always strictly adhered to in this Commonwealth".

[ 416 Pa. Page 532]

While the actual decisional point in Meisel is that a direct trespass action for personal injuries is not maintainable by a wife against her husband during coverture even though the husband's tort preceded the marriage, its language in proscribing a trespass action by a wife vis-a-vis her husband is much broader.

In Ondovchik v. Ondovchik, 411 Pa. 643, 192 A.2d 389, Carol Dallas, then unmarried, was a passenger in a motor vehicle operated by Albert Ondovchik when it was involved in an accident with two other motor vehicles. Carol Dallas sued the operators of the other two motor vehicles and Ondovchik was brought upon the record as an additional defendant. Sometime thereafter, Carol Dallas married Ondovchik. When the case was tried the jury returned a verdict against Ondovchik alone. The court below set aside the verdict "because the plaintiff and additional defendant were husband and wife". (p. 645). This Court, in reversing the judgment n.o.v. entered in the court below, distinguished Meisel in the following manner: (a) in Meisel, suit was begun after the marriage and during coverture, whereas in Ondovchik suit was begun prior to the marriage; (b) in Meisel, suit was instituted directly against the husband as an original defendant whereas in Ondovchik the suit was entered against third parties who brought Ondovchik upon the record as an additional defendant; (c) in Ondovchik, the wife did not testify against the husband or vice versa, whereas in Meisel, had the suit proceeded to trial, the wife would have been required to testify against the husband and vice versa. The real nub of Ondovchik ...


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