McCullough v. Railway Mail Ass'n

Citations

• 225 Pa. 118
• 73 A. 1007
• 1909 Pa. LEXIS 617

Syllabus

<p>Practice, C. P. — Appearance—Appearance de bene esse.</p> <p>1. An appearance by the defendant cures any defect or irregularity in the service of the writ. The appearance may be either in person or by counsel, but the defendant will also be regarded as having appeared if he give bail to the action, if he file an affidavit of defense, if he make defense before arbitrators or appeal from an award, or if he agree that an amicable action may be entered.</p> <p>2. If a defendant wishes to attack the regularity or'sufficiency of the writ, or question the jurisdiction of the court without submitting to the jurisdiction for the trial of the cause on its merits, he may do so by entering an appearance de bene esse for that specific purpose. If the court sustains his contention he is not in court, or subject to the court’s jurisdiction, and the merits of the case cannot be inquired into. If, on the other hand, the court rules against the defendant, he either may take an appeal, or he may consider himself in court, and defend the action on its merits. If he chooses the latter course and files an affidavit of defense and a plea, such action will be regarded as an appearance by him, and he cannot thereafter raise any question as to any irregularity or insufficiency in the service of the writ.</p> <p>Insurance — Accident insurance — External bodily injuries.</p> <p>3. In an action on a policy of accident insurance to recover damages for the death of a railroad postal clerk, alleged to have been caused by external bodily injuries, the ease is for the jury where the evidence on behalf of the plaintiff was in effect that the deceased was found in a semi-conscious condition in his car after an eighteen miles run alone; that on the following day swellings on his head were discovered by the attending physician, that seven days thereafter the deceased died; that an autopsy by two physicians disclosed a blood clot in the skull in the neighborhood of the swelling; and that in the judgme