Appeal from judgments of Court of Common Pleas of Allegheny County, April T., 1961 C, No. 699, in case of Elaine Cartmel et al. v. Harold Kenneth Williams et al.
Charles Kirshner, with him Rosenberg & Kirshner, for appellant.
Glenn C. Jones, for appellees.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Montgomery, J.
[ 207 Pa. Super. Page 145]
This appeal by the additional defendant Eugene H. Pfrogner arises from the entry of judgments for plaintiffs against both the original and the additional defendants. The action was in trespass for damages due to personal injuries and property damage caused in a collision of automobiles occurring in the following manner. Elaine Cartmel, while driving an automobile
[ 207 Pa. Super. Page 146]
(jointly owned with her husband, the other plaintiff) south on State Highway Route 51 in Elizabeth Township, Allegheny County, Pennsylvania, had stopped at the intersection of Weigel's Hill Road when it was struck in the rear by an automobile being operated by Harold Kenneth Williams, the original defendant. It is the contention of the original defendant that he was stopped behind plaintiff's automobile before he was struck in the rear by the additional defendant and that it was the additional defendant who caused the accident. The verdict of the jury indicates that both defendants contributed to it.
During the course of the trial the original defendant procured a joint tortfeasors release in his favor from the plaintiffs and filed it as part of his pleading in the case, which gives rise to one of the questions now raised in this appeal, i.e., is such a release admissible into evidence? The lower court held it was not. It is appellant's contention that the release and the facts surrounding its procurement should have been admitted to enlighten the jury as to plaintiffs' bias and prejudice and render it more capable of evaluating the testimony of the plaintiffs.
Such a release is authorized by the Act of July 19, 1951, P. L. 1130, § 4, 12 P.S. § 2085, and this release provided that it should not be construed as an admission of liability on the part of the released party. No evidence was present in the case that in any way referred to the release and it was for this reason the learned lower court refused its admission when it was offered at the conclusion of the additional defendant's case in a general manner, the purpose of the offer being unstated. However, at the conclusion of the closing remarks of plaintiffs' counsel, Mr. Kirshner, counsel for the additional defendant, stated to the court at a side-bar conference, "Your Honor, I would like to put something on the record. In closing remarks of Plaintiff's
[ 207 Pa. Super. Page 147]
counsel he indicated that in his opinion the accident was the fault of the Additional Defendant, Mr. Pfrogner. I believe that the Additional Defendant should have been allowed to introduce into evidence the Release which was executed by the Plaintiff in favor of the Original Defendant for the reason to enable the Additional Defendant to explain away the attitude of Plaintiff and Plaintiff's counsel."
No other objection was made about the closing remarks; nor was a motion made to withdraw a juror. It is also noted that plaintiffs' counsel corrected Mr. Kirshner as follows, "All right, sure, and I said either one or both in the beginning, too," in ...