Opinion
November 13, 1951.
January 17, 1952.
Practice — Costs — Appeals — Failure to sustain verdict.
Where it appeared that in cross actions of trespass the jury returned a verdict for a defendant in a specified sum; that plaintiff's motion for a new trial was granted, and upon appeal by defendant to the Superior Court the order granting a new trial was affirmed; and that upon the second trial the jury rendered a verdict for defendant, allowing no damages to either defendant or plaintiff; it was Held that, since defendant had been unsuccessful in sustaining the verdict in the original trial, he was not entitled to include as part of the costs in the case the cost of printing his paper books upon the appeal.
Before RHODES, P.J., HIRT, RENO, DITHRICH, ROSS, ARNOLD and GUNTHER, JJ.
Appeal, No. 149, April T., 1951, from order of Court of Common Pleas of Armstrong County, Dec. T., 1946, No. 168, in case of Ray F. Yount v. A.L. Whisner. Order affirmed.
W. Davis Graham, for appellant, submitted a brief.
No argument was made nor brief submitted for appellee.
Submitted November 13, 1951.
Cross actions in trespass for property damage.
The facts are stated in the opinion, by GRAFF, P.J., of the court below, as follows:
The plaintiff, Ray F. Yount, instituted this action of trespass to recover damages for an injury done to his truck because of the alleged negligence of the defendant, A.L. Whisner. Thereafter, as is permitted by law, the defendant, Whisner, filed a cross-suit against the plaintiff, claiming damages to his truck because of the alleged negligence of the plaintiff.
Upon trial of the case the Jury returned a verdict in favor of the defendant in the sum of $2,000.00.
The plaintiff filed a motion for a new trial, which motion was granted, and thereupon the defendant appealed to the Superior Court of Pennsylvania. The order granting a new trial was affirmed by the appellate court, and a remittitur issued on May 1, 1948. The case was re-tried, and upon November 2, 1949, the Jury returned a verdict in favor of the defendant, allowing no damages to either the defendant or the plaintiff. The plaintiff again filed a motion for a new trial. By stipulation it is agreed, first, that this motion should be refused, and, secondly, that the item of $388.67, taxed by the Prothonotary, for printing records and brief upon the appeal to the Superior Court, be considered and decided by the Court as though exception had been filed by the plaintiff to such cost item. The matter therefore now before us is an appeal by the plaintiff from the taxation of costs of printing of the paper books in the appeal to the Superior Court.
The determination of this question involves the construction of the Act of April 15, 1907, P. L. 83, as amended April 27, 1909, P. L. 263, which in part provides: ". . . in all cases, either in law or equity, wherein an appeal is taken from any judgment, decree or order to the Supreme or the Superior Court, the party in whose favor the final decision is rendered shall be entitled to charge, and collect from the losing party as part of the costs, such amount as shall have been expended for printing paperbooks upon said appeal."
In Mahony, Trustee, v. Boenning et al., 139 Pa. Super. 428, 434, the Court states as follows: "Of course, where the judgment of the appellate court orders or approves a new trial, there is no final decision until that trial has been had; and all the costs, including the paper books on the first appeal, must await the outcome of the final trial. If an appeal is taken from the judgment on that trial, the costs of that appeal will be payable by the party who loses the final decision on that appeal. . . . But if the plaintiff was not satisfied with his judgment and saw fit to take his own appeal, and failed entirely to increase his judgment in the slightest degree, he must pay the costs of his own appeal, including the expense of printing of paper books, if the final decision on that appeal was against him."
The inquiry in this case is, who lost the final decision in appeal?
It is first to be observed that the actions in this case were cross-suits, and in each such suit the plaintiff and the defendant were actors. A cross-suit is not a set-off, nor a counter-claim, strictly speaking. The defendant was the successful party upon the first trial, having secured a verdict in his favor in the sum of $2,000.00. A new trial was granted, from which the defendant appealed, and here he was unsuccessful. Upon the second trial the Jury allowed the defendant nothing by way of damages. He was therefore unsuccessful in sustaining the verdict, which was the reason for the appeal to the Superior Court. It is therefore clear that inasmuch as the defendant lost the appeal to the Superior Court, and lost the original verdict of money damages, the final decision on appeal was against him.
This conclusion is in accord with the ruling in Matthews v. Tyrone Coal Co., 74 Pa. Super. 588. In this case the Plaintiff recovered a judgment in the Common Pleas and, being dissatisfied with the Court's ruling on the measure of damages, took an appeal to the Supreme Court, which decided against him, and the judgment of the lower court was affirmed. It was there held that the losing party against whom the final decision was rendered was the plaintiff, and, as such, he was liable for the costs of the appeal, including the expense of printing the paper books. The Court stated in that case upon Page 591 as follows: "A construction which would assure an appellant the payment of his costs on appeal, regardless of the merits of his case, will not be resorted to unless the language of the statute imperatively requires it." See also: Penna. Co. v. Wallace, 44 Pa. Super. 64; Cameron v. Paul, 11 Pa. 277; Figlarowicz et al. v. Somerset Elec. Co., 69 Pa. D. C. 60.
We therefore conclude that the defendant is not entitled to include as part of the costs in this case the cost of printing his paper books upon appeal to the Superior Court.
Defendant appealed.
The order of the court below is affirmed on the opinion of President Judge GRAFF.