Opinion
March 3, 1930.
April 18, 1930.
Negligence — Automobile — Collision — Settlement — Partial payment — Default — Suit — Subsequent petition to have payment made under settlement agreement credited on verdict.
The defendant agreed in writing with the plaintiff and his wife to pay them $800 in settlement of all claims growing out of an automobile accident. After paying $300 on account, defendant defaulted in further payments, and plaintiff brought this action, and recovered a verdict of $350. Defendant did not offer any evidence of the payments under the settlement but after verdict asked that the sum paid by him on account of the settlement should be credited on the verdict.
Held: That the petition was properly dismissed. The defendant took his chance of a favorable verdict and must abide by the result. The settlement was with husband and wife, while the action and verdict were in the name of the husband alone.
Appeal No. 9, February T., 1930, by defendant from judgment of C.P., Luzerne County, October T., 1927, No. 595, in the case of Condy Sitko v. Bradley Fox.
Before TREXLER, P.J., KELLER, LINN, GAWTHROP, BALDRIGE and GRAFF, JJ. Affirmed.
Petition for a rule to credit money paid. Before VALENTINE, J.
The facts are stated in the opinion of the Superior Court.
The court discharged the rule. Defendant appealed.
Error assigned was the order of the court.
Chas. F. Wharen, for appellant.
No appearance and no printed brief for appellee.
Argued March 3, 1930.
The appellant, on October 9, 1926, agreed in writing to pay Mr. and Mrs. Condy Sitko $800 in settlement of all claims growing out of an automobile accident which occurred on August 31, 1926. After paying $300 he defaulted in further payments, and on July 12, 1927, Condy Sitko brought an action of trespass against him and recovered a verdict of $350. Appellant then presented a petition to the lower court asking that the sum paid by him on account of said abortive settlement should be credited on the verdict. The court discharged the rule and this appeal followed.
On the trial in the court below the appellant defended on the grounds of (1) no negligence on his part, and (2) contributory negligence of plaintiff. He offered no evidence tending to show a settlement on the basis of $800 and payment of $300 on account thereof. The introduction of evidence showing a payment by him of $300 on account of settlement of plaintiff's damages would have carried with it an implied admission of liability. Defendant preferred to take his chance of a favorable verdict, and must abide by the result. In all of the cases cited by his counsel the matters relied on were brought into the case at or prior to the trial. They furnish no warrant for an application of this character, made after trial, in reduction of the verdict.
Furthermore, the agreement of settlement was with Mr. and Mrs. Sitko and the payments thereunder were made to them jointly. This action was brought by Condy Sitko alone and the verdict is solely in his favor.
The order of the court below is affirmed.