Opinion
May 8, 1934.
July 13, 1934.
Trial C.P. — Trespass actions tried together — Improper exclusion of evidence in one suit — New trial.
Where two actions of trespass for damages resulting from a collision between two automobiles are tried together, the plaintiff in the one suit being the defendant in the other, and a new trial is ordered by the Supreme Court in the one suit because the court improperly excluded evidence offered in rebuttal, a new trial will likewise be awarded in the other suit so that the same evidence may be admitted by way of defense.
Schoen et ux. v. Elsasser, 315 Pa. 65 followed.
Appeal No. 199, April T., 1934, by defendant from decree of C.P., Somerset County, February T., 1932, No. 3, in the case of Hulda Nathan Elsasser v. Max Schoen.
Before TREXLER, P.J., KELLER, CUNNINGHAM, BALDRIGE, STADTFELD, PARKER and JAMES, JJ. Reversed.
Trespass to recover damages for personal injuries. Before BOOSE, J.
The facts are stated in the opinion of the Superior Court and in the case of Schoen et ux. v. Elsasser, 315 Pa. 65.
Verdict for plaintiff in the sum of $486.04 and judgment entered thereon. Defendant appealed. Error assigned, among others, was the ruling on the evidence.
Anne X. Alpern, and with her Daryle R. Heckman and Clarence L. Shaver, for appellant.
No appearance and no paper book for appellee.
Argued May 8, 1934.
A collision between two automobiles on the Lincoln Highway, at Sliding Rock Hill, resulted in two actions of trespass in the court of common pleas of Somerset County. Max Schoen and Rose Schoen brought suit against N.A. Elsasser to September Term, 1931, No. 566; Hulda Nathan Elsasser brought suit against Max Schoen to February Term, 1932, No. 3. The cases were tried together, and resulted in a verdict in favor of the defendant in the first mentioned suit, and for the plaintiff in the second. From the judgments entered on the verdicts appeals were taken respectively to the Supreme Court and this court. The Supreme Court reversed the judgment in favor of the defendant, N.A. Elsasser, 315 Pa. 65, 172 A. 301, because of the refusal of the court below to admit certain evidence which the appellants, the plaintiffs in that action, had offered by way of rebuttal. The Supreme Court held that the excluded evidence was relevant and material and should have been received. The ruling of the Supreme Court requires the reversal of the judgment in this appeal. If the evidence was admissible by way of rebuttal in the action of Schoen v. Elsasser, it was admissible by way of defense in the action of Elsasser v. Schoen.
For the reasons set forth in the opinion of the Supreme Court above mentioned, the first, second and third assignments of error are sustained, the judgment is reversed and a new trial awarded.