Appeal from order of Court of Common Pleas of Luzerne County, July T., 1964, No. 274, in case of Catherine I. Noonan v. Manuel McHugh et al.
Thomas C. Moore, with him William A. Valentine, for appellant.
Charles L. Casper, with him William J. Fahey, for defendant, appellee.
J. Thirwall Griffith, for appellee.
Bell, C. J., Jones, Cohen, Eagen and O'Brien, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Roberts took no part in the consideration or decision of this case. Dissenting Opinion by Mr. Justice Jones.
Catherine I. Noonan was a passenger in an automobile operated by her son, Patrick Noonan, when it collided with an automobile operated by Manuel McHugh. Alleging that the collision was caused by McHugh's negligent driving, Catherine I. Noonan instituted this action against him to recover compensation for injuries suffered. McHugh joined Patrick Noonan as an additional defendant in the action, alleging that his negligence caused the collision, and that he "is alone liable or jointly and severally liable . . . for the cause of action asserted by Catherine I. Noonan." Patrick Noonan filed an answer to the complaint of the original defendant in which he asserted under "New Matter" that in consideration of the payment of $2000, the plaintiff, Catherine I. Noonan, had released him from any and all claims arising out of the accident. The plaintiff did not reply to this answer because no notice to plead was endorsed on it. See, Pa. R. C. P. 1026.
At trial, the evidence disclosed that the collision occurred at the intersection of West River Street and West Ross Street in the City of Wilkes-Barre, and that the intersection is controlled by a traffic light. According to testimony introduced by the plaintiff, the Noonan automobile was proceeding north on West River Street and was in the intersection with the green light in favor of traffic traveling on West River Street, when it was hit by the McHugh automobile which was traveling in a westerly direction on West Ross Street. According to testimony introduced by the defendant McHugh, his automobile was more than half way through the intersection with the traffic light green and in favor of traffic traveling on West Ross Street, when it was hit by the Noonan automobile.
The trial judge instructed the jury, inter alia, that one of four verdicts was possible under the evidence: (1) If the jury concluded that neither operator of the automobiles involved was negligent, then the verdict should be against the plaintiff and in favor of both defendants; (2) If the jury concluded that the operators of both automobiles were negligent and that such negligence was the proximate cause of the accident, then the verdict should be in favor of the plaintiff and against both defendants, namely, McHugh and Patrick Noonan; (3) If the jury concluded that McHugh alone was negligent and that his negligence was the proximate cause of the accident, then the verdict should be in favor of the plaintiff and against the defendant McHugh only; and (4) If the jury concluded that Patrick Noonan was alone negligent and that his negligence was the proximate cause of the accident, then the verdict should be in favor of the plaintiff and against the defendant Noonan only. A general exception to the charge was noted of record by counsel for both Catherine I. Noonan and Manuel McHugh.
Three separate verdict slips were sent out with the jury. Each slip was captioned differently, namely: (1) "Catherine I. Noonan v. Patrick Noonan"; (2) Catherine I. Noonan v. Manuel McHugh"; and (3) "Catherine I. Noonan v. Manuel McHugh (defendant) and Patrick Noonan (additional defendant)." Each slip had printed on it, "We the jury in the above case, find a verdict in favor of . . . Foreman."
At the conclusion of its deliberations, the jury returned to the courtroom and delivered to the trial judge the three verdict slips. On slip No. 1, captioned "Catherine I. Noonan v. Patrick Noonan," there was written in longhand after the printed words "find a verdict in favor of" the following: "Catherine I. Noonan for $10,000. William ...