
    Williams et al. v. Laurel Line Taxicab Co. et al.
    
      Laurence D. Savige, for plaintiffs.
    
      Frank M. Walsh, for defendants.
    December 19, 1941.
   Leach, P. J.,

Defendants, having been served with plaintiffs’ statement alleging personal injuries to Dorothy Farr, passenger, and damage to the car of Myfanwy G. Williams, owner and driver, in an automobile accident, filed no affidavit of defense, and a month after service petitioned the court to sever the actions of plaintiffs in order to permit defendants to bring in Myfanwy G. Williams as an additional defendant. Plaintiffs move to dismiss the rule because defendant had not filed an affidavit of defense in the proper time. The action is already delayed one term of court because it could not be put on the trial list for January term.

Pa. R. C. P. 2252 prohibits the joinder as an additional defendant of one who is already a party to the action as plaintiff. In Freeman et ux. v. MacDonald et ux., 42 D. & C. 158, it was held that the court of common pleas has no authority to authorize the severance of the actions in order to bring in one of the plaintiffs as an additional defendant. Stokes et al. v. Giarraputo & Son (No. 1), 42 D. & C. 161, permitted such a severance. In neither of the cases did defendant delay his action by not filing an affidavit of defense within 15 days as required by the former sci. fa. acts which are superseded by the Supreme Court rules.

The wisdom of not permitting a plaintiff who has made a sworn statement of one cause of action to profit by having a verdict in his favor on an entirely different set of facts may have appealed to the Rules Committee. The complications arising at the trial also might tend to error on the part of the court and delay real justice.

In the present case the denial of the rule to sever the actions rests upon a firmer foundation, that defendant delayed the procedure until plaintiffs were already prejudiced by the loss of one term of court and until he no longer had the right without a special indulgence from the court.

Now, December 19,1941, rule to sever the actions of plaintiffs Farr from the action of plaintiff Williams is discharged and petition dismissed.  