Opinion
January 9, 1934.
January 30, 1934.
Practice — Record — Amendment — Discretion of court — Verdict — Additional defendant — Absence of finding as to — No appeal.
1. The grant or denial of an application to amend or alter the record rests within the sound discretion of the court whose record it is, and is not the subject of an appeal. [29]
2. Where in an action of trespass the jury is correctly charged as to liability of the defendant and of the additional defendant and that, if they find either or both defendants liable, a verdict can be rendered against either or both, and a verdict is returned against defendant but no finding is made as to the additional defendant, such verdict indicates that the jury intended the additional defendant should not be held liable, and the court may properly, upon motion of the additional defendant, amend the verdict so as to include a verdict for the additional defendant, but its refusal to do so is within its sound discretion and will not be disturbed on appeal. [28-9]
Before FRAZER, C. J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.
Appeal, No. 374, Jan. T., 1933, by Armour Company, additional defendant, from judgment of C. P. No. 3, Philadelphia Co., Sept. T., 1927, No. 8152, in case of Luther Nelson v. Philadelphia Rapid Transit Company and Swift Company, defendants, and Armour Company, additional defendant. Appeal quashed.
Trespass for personal injuries. Before PATTERSON, P. J.
The opinion of the Supreme Court states the facts.
Verdict for plaintiff against defendant transit company. No finding as to additional defendant. Rule by additional defendant to amend verdict discharged. Additional defendant appealed.
Error assigned was discharge of rule, quoting record.
William N.J. McGinniss, with him Walter Lee Sheppard, of Foulkrod, Sheppard, Porter Alexander, for appellant.
Chester N. Farr, Jr., and Bernard J. O'Connell, for appellee, were not heard.
Argued January 9, 1934.
Plaintiff, a passenger on a car of defendant transit company, was injured in a collision between the car and a truck. Originally a joint action was instituted against the transit company and Swift Company, as defendants. Later it was discovered that Armour Company, not Swift Company, was the owner of the truck, whereupon, on petition of the transit company, Armour Company was by scire facias brought upon the record as additional defendant. A nonsuit as to Swift Company was entered by agreement of all parties, and the action proceeded against the transit company and Armour Co. to determine whether defendants were "solely or jointly liable to plaintiff." A verdict was rendered by the jury against the transit company for $3,191.50, and no finding made as to Armour Company. Subsequently a rule was taken by Armour Company to have the court "remould the verdict so as to include, so far as Armour Company is concerned, a verdict for defendant"; this appeal is from the refusal of the lower court to do so.
An examination of the record shows the jury was plainly and correctly charged as to liability of the parties, and that, if they found either or both defendants liable, a verdict could be rendered against either or both. The verdict returned indicates the jury understood the court's instructions and intended the transit company should be held responsible for the accident and that Armour Company was not liable. The lower court could properly have amended the verdict and avoided this controversy, but the refusal to do so was within its sound discretion and will not be disturbed on appeal. In Cohn v. Scheuer, 115 Pa. 178, in adopting the language of Chief Justice AGNEW in Kendig's Appeal, 82 Pa. 68, 71, we said, at page 183, "upon an application to amend or alter the record, to grant or deny rests within the sound discretion of the court whose record it is, and is not the subject of an appeal."
The appeal is quashed at appellant's costs.