In Niebauer v. Schultz, 318 Pa. 266, we held, in affirming the judgment of the Superior Court on its opinion, that the competency of a witness to testify in an action against the administrator of a decedent's estate was not affected by the witness having been made an additional defendant under a scire facias writ.Summary of this case from Koontz v. Messer
March 25, 1935.
April 15, 1935.
Evidence — Witnesses — Competency — Additional defendant — Action against administrator — Calling additional defendant as upon cross-examination — Claim against original defendant — Evidence against each of defendants — Harmless error — Charge as to verdict against additional defendant — Acts of April 10, 1929, P. L. 479, and June 22, 1931, P. L. 663.
1. In an action of trespass against an administrator for injuries resulting from the negligence of defendant's decedent, an additional defendant brought on the record by defendant under the Act of April 10, 1929, P. L. 479, as amended by the Act of June 22, 1931, P. L. 663, is competent as a witness on behalf of plaintiff and against the original defendant.
2. In an action, plaintiff may, under the Act of 1929, as amended by the Act of 1931, call the additional defendant as under cross-examination in support of any claim of plaintiff against such additional defendant but not to sustain plaintiff's claim against the original defendant alone.
3. Where, in such case, plaintiff calls the additional defendant as under cross-examination in presenting plaintiff's claim against the original defendant alone, such error does not require the setting aside of a verdict and judgment in favor of plaintiff and against the original defendant, where there is evidence of the original defendant's negligence to support the verdict against him apart from the testimony of the additional defendant and there is no evidence in the case from which an inference of the additional defendant's negligence can legally be drawn.
4. In such case, where plaintiff's counsel states that no judgment should be entered in favor of plaintiff against the additional defendant but no formal release is filed by plaintiff, an error of the trial judge in charging as to the liability of the additional defendant that if the jury find both defendants negligent, the verdict should be in favor of the original defendant against the additional defendant, is harmless and does not require reversal of the verdict and judgment in favor of plaintiff and against the original defendant, where there is no evidence to support a verdict against the additional defendant.
Argued March 25, 1935.
Before FRAZER, C. J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.
Appeal, No. 113, March T., 1935, by administrator, from judgment of Superior Court, April T., 1934, No. 266, affirming judgment of C. P. Erie Co., Feb. T., 1932, No. 608, in case of Margaret Niebauer v. Anthony Schultz, administrator of Estate of Louis Schultz, deceased, et al. Judgment affirmed.
Trespass for personal injuries. Before BARNETT, P. J., specially presiding.
The opinion of the Superior Court states the facts.
Verdict and judgment for plaintiff against defendant in amount of $2,500. Defendant appealed to Superior Court. Judgment affirmed. Appeal allowed to Supreme Court.
Error assigned, among others, was refusal of new trial.
M. E. Graham, with him Gunnison, Fish, Gifford Chapin, for appellant.
Harold F. Mook, for appellee.
Frank B. Quinn, of English, Quinn, Leemhuis Tayntor, for additional defendant.
The facts and the law applicable to this case are admirably stated in the learned opinion of President Judge KELLER of the Superior Court. The judgment is affirmed on his opinion as reported in 114 Pa. Super. 538.