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Smith v. Whitmore

decided: October 6, 1959.

GEORGE SMITH, PLAINTIFF,
v.
MAX C. WHITMORE, DEFENDANT AND THIRD-PARTY PLAINTIFF, APPELLEE (PERVIS LEE PUE, JR., THIRD-PARTY DEFENDANT, APPELLANT).



Author: Kalodner

Before GOODRICH, KALODNER and HASTIE, Circuit Judges.

KALODNER, Circuit Judge.

This appeal involves the issue of application of the Federal Rules of Civil Procedure, 28 U.S.C., to the provisions of the Uniform Contribution Among Joint Tortfeasors Act in effect in Pennsylvania ("Uniform Act").*fn1

Plaintiff George Smith instituted suit in the United States District Court for the Eastern District of Pennsylvania*fn2 against Max C. Whitmore for recovery of damages for personal injuries arising out of an automobile accident which occurred in Philadelphia, Pennsylvania.*fn3

Pursuant to Rule 14 of the Federal Rules, Whitmore impleaded Pervis Lee Pue, Jr. as a third-party defendant*fn4 seeking contribution in the event that he and Pue were found negligent. Plaintiff never amended his complaint to include Pue as a party defendant. The jury returned a general verdict for Smith against Whitmore in the sum of $19,500 which was never appealed. In returning its general verdict the jury, in response to an interrogatory, found that Pue was "guilty of negligence which was a substantial factor in causing the accident".

The District Court entered the following judgment:

"And Now, to wit: January 13, 1959, in accordance with the verdict and the jury's answer to an interrogatory, it is

"Ordered that Judgment be and the same is hereby entered in favor of Plaintiff, George Smith, in the sum of Nineteen Thousand Five Hundred and 00/100 ($19,500.00) Dollars, and against the Defendant Max C. Whitmore, together with costs, and it is further

"Ordered that judgment be and the same is hereby entered in favor of Third-party Plaintiff, Max C. Whitmore and against Third-party Defendant, Pervis Lee Pue, Jr., in the sum of Nine Thousand Seven Hundred and Fifty and 00/100 ($9750.00) Dollars, together with costs."

On January 22, 1959, third-party defendant moved, pursuant to Rule 59(e) of the Federal Rules, for an Order amending the foregoing Judgment to read as follows:

"Judgment in favor of plaintiff and against defendant in the sum of Nineteen Thousand Five Hundred ($19,500.00) Dollars and in favor of third-party plaintiff and against third-party defendant for contribution."

The following Order was thereafter entered by the District Court:

"And Now this 29th day of January, 1959, an Order is entered amending the Judgment entered on January 13, 1959, to read Judgment in favor of plaintiff, George Smith, and against defendant, Max C. Whitmore, in the sum of $19,500.00, and in favor of third-party plaintiff and against third-party defendant in the sum of $9,750.00, for contribution."

It is from this money judgment of $9,750 against him that the third-party defendant has appealed. He contends that it is erroneous in that the Uniform Act precludes the entry of a money judgment for contribution until such time as the third-party plaintiff has paid more than his pro rata share of the common ...


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