Idell v. Day

Pee Curiam, This action in trespass was brought by a minor daughter, by her father as next friend, and the father in his own right, against the defendant to recover damages for injuries received in a collision between the defendant’s automobile with some children coasting on a flexible sled. A verdict was recovered in’ favor of each of the named plaintiffs, and one appeal was taken from the two judgments as entered on the verdict. Such procedure is not warranted. The alleged rights of the parties are separate and distinct, and there is no authority for a joint appeal: Bitler’s Est., 30 Pa. Superior Ct. 84; Com. v. Surety Co., 37 Pa. Superior Ct. 167. The question has been conclusively determined in Mc-Glinn’s Est., 270 Pa. 373, in which it is held, “Where an improper joinder appears, the appeal must be quashed (Samson’s Est., 22 Pa. Superior Ct. 93; May’s Est., 22 Pa. Superior Ct. 77), or an election may be required. In such case, a non pros may be entered as to all appellants, but one: White’s App., 15 W. N. C. 313; Pinker v. Colonial Iron Co., 68 Pa. Superior Ct. 258; Saunders v. Pittsburgh Rys. Co., 255 Pa. 348.” And, in Shaw v. Plains Township, 270 Pa. 387, the appeal was quashed for the reason that “the joint appeal was improperly taken; there should be two appeals — one from each judgment.” In our own case of Cloud v. Phila. & W. C. T. Co., filed December 8, 1921, 78 Pa. Superior Ct. 85, we declared the necessity of taking separate appeals, for the reasons given in the cases cited, but inasmuch as the appellee did not make any objection, we considered the appellant’s contention on its merits, and affirmed the judgments instead of quashing the appeal. A similar situation is presented in this case. The appellee did not object to hearing the two cases in the one appeal. The result to the appellant is not changed for the reason, that in the case of Clarence Idell v. the same defendant, his liability to the plaintiff in that case, grew out of facts that are identical with those exhibited in this record, as [218] decided by the Supreme Court in an opinion filed February, 6, 1922, 273 Pa. 34. The plaintiffs in the two cases were parties in the same accident, and the injuries to each were caused by the negligence of the defendant. If the appellant had elected to non pros as to one of the parties, the judgment would have to be affirmed, on the authority of the case decided by the Supreme Court,- which by virtue of section 10, Act of June 24,1895, P. L. 212, we are required to receive and follow as of binding authority, and it would be out of place for us to discuss the questions arising on the same evidence, between the same parties, and in the same case: Collins & Woods v. Busch, 15 Pa. Superior Ct. 255. The judgments are affirmed.