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HAMILTON v. GALLO. HAMILTON (03/31/75)

decided: March 31, 1975.

HAMILTON, APPELLANT,
v.
GALLO. HAMILTON, APPELLANT, V. THE BULLETIN COMPANY



Appeals from judgments of Court of Common Pleas, Trial Division, of Philadelphia, Dec. T., 1966, Nos. 2731 and 5434, in cases of David Hamilton v. Frank Gallo, and Same v. The Bulletin Company.

COUNSEL

Mitchell A. Kramer, with him Steven Kapustin, and Kramer & Salus, for appellant.

Edward R. Paul, with him Joseph G. Manta, and LaBrum & Doak, for appellee, at No. 1691.

Lynn L. Detweiler, with him Swartz, Campbell & Detweiler, for appellee, at No. 1494.

Watkins, P.j., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Van der Voort, J. Dissenting Opinion by Price, J. Jacobs and Hoffman, JJ., join in this dissenting opinion.

Author: Van Der Voort

[ 233 Pa. Super. Page 478]

On April 14, 1966, the appellant, David Hamilton, was involved in a motor vehicle accident between his own automobile and one operated by appellee Frank Gallo.

[ 233 Pa. Super. Page 479]

Hamilton allegedly suffered back injuries and was hospitalized. On August 28, 1966, Mr. Hamilton, having returned to work as the operator of a municipal street cleaning truck, was involved in another accident. This second collision was between the appellant's truck and a truck operated by an agent of appellee, The Bulletin Company. As a result, Hamilton allegedly again suffered serious back injuries, which this time caused him to be permanently disabled.

Hamilton eventually brought separate suits in trespass against Gallo and Bulletin. Prior to the trials of these cases, appellant's counsel initiated discussions with defense counsel which led to an agreement with the Court's approval, that the two trials would be consolidated and tried together before a single judge and jury. All the parties agree that prior to trial, the trial judge, the Honorable Maurice Sporkin, announced that all of the evidence, both on liability and damages, would be introduced in both cases before the case was sent to the jury.

During the course of the consolidated trial, the appellant first presented his evidence as to both liability and damages against Gallo. Almost at the conclusion of this presentation (appellant had not yet introduced some exhibits), counsel for appellee Gallo moved that the Court sever his case completely from the Bulletin case and that the jury be given his case alone and without the benefit of any evidence in the Bulletin case. Counsel for Bulletin joined in that request. Counsel for appellant contested these requests. After extended discussions among counsel (which will be discussed more fully, infra) the Court ruled that the plaintiff-appellant would present all of his evidence on liability in the Bulletin case and that the jury would then consider both cases solely on the liability question. If either one or both defendant-appellees were found liable, the jury would then hear evidence and consider the issue of damages. The plaintiff-appellant then

[ 233 Pa. Super. Page 480]

    moved that the cases be completely severed, arguing that the basis for joinder no longer existed. ...


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