Opinion
October 10, 1935.
November 25, 1935.
Pleading — Averments — Denial — Inquiry concerning facts — Exclusive control of opposite party — Acts of May 14, 1915, P. L. 483, and June 12, 1931, P. L. 557.
Under the Act of May 14, 1915, P. L. 483, section 8, as amended by the Act of June 12, 1931, P. L. 557, it is unnecessary for a party to aver that he has inquired of the opposite party concerning facts, the proof of which he alleges to be within the exclusive control of the opposite party.
Argued October 10, 1935.
Before FRAZER, C. J., KEPHART, SCHAFFER, MAXEY, DREW, LINN and BARNES, JJ.
Appeal, No. 149, March T., 1935, by plaintiff, from order of C. P. Allegheny Co., Jan. T., 1935, No. 3985, in case of Laura W. Putnam v. United Traction Company of Pittsburgh. Judgment affirmed.
Assumpsit.
The opinion of the Supreme Court states the facts.
Rule for judgment for want of a sufficient affidavit of defense discharged, REID, P. J., GRAY and RICHARDSON, JJ., opinion by RICHARDSON, J. Plaintiff appealed.
Error assigned was discharge of rule.
John M. Reed, for appellant.
Robert L. Kirkpatrick, with him Maynard Teall, E. P. Griffiths and Edwin W. Smith, of Reed, Smith, Shaw McClay, for appellee.
This appeal involves the same questions considered and disposed of in Ernest A. Frey v. United Traction Company of Pittsburgh, 320 Pa. 196, with one exception. In the affidavit of defense defendant demands proof of plaintiff's averment of ownership of the bonds, alleging that it has no means of knowledge of this fact. Plaintiff contends that in the absence of averment that defendant has inquired of plaintiff on the subject, the affidavit is insufficient to prevent summary judgment. The Act of May 14, 1915, P. L. 483, section 8, as amended by the Act of June 12, 1931, P. L. 557, makes it unnecessary for a party to aver that he has inquired of the opposite party concerning facts, the proof of which he alleges to be within the exclusive control of the opposite party: Security Trust Co. of Pottstown v. Hubert, 110 Pa. Super. 418, 425, 169 A. 18. The issue of ownership must be tried by the jury. Accordingly, though not for the reason given by the learned court below, the judgment is affirmed and record remitted for trial.
Again amended by the Act of July 12, 1935, P. L. 666.