Smalich v. Westfall

• Decision Date: 09 October 1970
• Citation: 269 A.2d 476,440 Pa. 409
• Parties: Marco SMALICH, Executor of the Estate of Julia Smalich, Deceased, Michael Smalich, a Minor, By Marco Smalich, His Guardian and Marco Smalich, Appellants, v. Felix Rush WESTFALL and Stephanna Louise Blank.
• Court: Pennsylvania Supreme Court

Page 476

269 A.2d 476

440 Pa. 409

Marco SMALICH, Executor of the Estate of Julia Smalich,

Deceased, Michael Smalich, a Minor, By Marco

Smalich, His Guardian and Marco Smalich, Appellants, v. Felix Rush WESTFALL and Stephanna Louise Blank.

Supreme Court of Pennsylvania.

Oct. 9, 1970.

Morton B. DeBroff, Pittsburgh, David R. Gold, Greensburg, for appellants

Carl E. Fisher, Robinson, Fisher & Long, Greensburg, for appellees.

Before BELL, C.J., and JONES, COHEN, EAGEN, O'BRIEN, ROBERTS, and POMEROY, JJ.

OPINION

EAGEN, Justice.

Two automobiles collided in Westmoreland County. One of the vehicles, owned by Julia Smalich, was operated by Felix Rush Westfall. Julia Smalich and her minor son, Michael, were passengers in this automobile at the time. The other vehicle involved was operated by Stephanna Louise Blank. Julia Smalich suffered injuries in the collision which caused her death. Michael Smalich was injured, but recovered.

This action in trespass was later instituted, naming both Westfall and Blank as defendants. The estate of Julia Smalich sought damages in both a wrongful death action and a survival action. Marco Smalich, the guardian of the minor, claimed damages for the minor's injuries on behalf of the minor and on his own behalf as guardian.

At trial, the jury returned a verdict in favor of all plaintiffs and against both defendants. Damages were awarded in the wrongful death action in the sum of $1025; in the survival action in the sum of $2000; in the guardian's action in the sum of $166.50; and in the minor's action in the sum of $20,000. Post trial motions were timely filed by defendant Blank, seeking judgment notwithstanding the verdict in the actions on behalf of the Smalich Estate and a new trial in the actions on behalf of the minor and the guardian. Both motions were granted by the court en banc below. The plaintiffs appealed.

THE MINOR'S ACTION

In this instance, the court below awarded a new trial because it concluded that the verdict was against the weight of the evidence, and was also excessive. We have said many times that the grant of a new trial lies within the inherent power of the trial court, and on appeal we will not interfere with the exercise thereof, unless there has been a clear abuse of discretion or an error of law which necessarily controlled the grant of the new trial: Kralick v. Cromwell, 435 Pa. 613, 258 A.2d 654 (1969); Getz v. Balliet, 431 Pa. 441, 246 A.2d 108 (1968); Guzmann v. Bloom, 413 Pa. 576, 198 A.2d 499 (1964). An examination of the record fails to persuade us that the court abused its discretion in awarding a new trial in the actions involving the minor's injuries, and we will, therefore, affirm its order in this respect.

ACTIONS ON BEHALF OF THE ESTATE

The trial jury found that Westfall's negligent operation of the Smalich automobile was a proximate cause of the collision. That the trial record amply supports this finding is not and cannot be questioned. After trial, the court en banc ruled that, under the facts, the contributory negligence of Westfall must be imputed to the owner of the automobile as a matter of law, and this precluded recovery by the Smalich Estate against defendant Blank. This conclusion of the court below was based on our ruling in Beam v. Pittsburgh Railways Co., 366 Pa. 360, 77 A.2d 634 (1951), and admittedly was clearly dictated by that decision.

In Beam we held that where the owner of an automobile is present while it is being negligently operated by another, there is a presumption that the owner of the vehicle has the power to control it, and, in the absence of evidence to the contrary, a relationship of principal and agent Or master and servant exists between the owner and driver, because of which the driver's contributory negligence is imputed to the owner, barring the owner from recovering for injuries caused by the negligence of a third person. In considering the instant case, we have re-examined Beam and conclude that, as to the portion of the holding above set forth, it should be overruled and no longer be recognized as the law of this Commonwealth.

First, a plaintiff ought not to be barred from recovery against a negligent defendant by the contributory negligence of a third person unless the relationship between the plaintiff and the third person is such that the plaintiff would be vicariously liable as a defendant for the negligent acts of the third person: Prosser, The Law of Torts § 73 (3d ed. 1964). See also, Restatement (Second), Torts §§ 485, 486 and 491 (1965). Placed in the context of this case, a driver's negligence will not be imputed to a passenger, unless the relationship between them is such that the passenger would be vicariously liable as a defendant for the driver's negligent acts: See Beam v. Pittsburgh Railways Co., supra. The relationship between the passenger and the driver is therefore a very critical one, worthy of careful analysis and consideration.

At least three relationships could exist between an owner-passenger and a driver of an automobile: (1) bailor-bailee; (2) principal-agent; and (3) master-servant.

A bailment is a delivery of personalty for the accomplishment of some purpose upon a contract, express or implied, that after the purpose has been fulfilled, it shall be redelivered to the person who delivered it, otherwise dealt with according to his directions or kept until he reclaims it: Wright v. Sterling Land Co., 157 Pa.Super. 625, 43 A.2d 614 (1945). As a general rule, a bailor is not liable for the negligence of the bailee in the operation of a bailed chattel: Brower v. Employers' Liability Assurance Co., Ltd., 318 Pa. 440, 177 A. 826 (1935); McColligan v. Penna. R.R. Co., 214 Pa. 229, 63 A. 792 (1906); Hajduk v. Fague, 200 Pa.Super. 55, 186 A.2d 869 (1962). Therefore in an action in trespass by a bailor to recover for damage to the thing bailed, caused by the negligent act of a third party, the contributory negligence of the bailee is no defense, unless the bailee was at the time acting as the bailor's servant: Commercial Banking Corp. v. P.T.C., 162 Pa.Super. 158, 56 A.2d 344 (1948); Restatement (Second), Torts § 486 (1965); Prosser, The Law of Torts § 73 (3d ed. 1964). And the fact that a bailor shares the use of the thing bailed (here, rides as a passenger in the automobile) with his bailee does not necessarily cause a termination of the bailment and create a new relationship: Rodgers v. Saxton, 305 Pa. 479, 158 A. 166 (1931), 80 A.L.R. 280 (1932).

Agency is the relationship which results from (1) the manifestation of consent of one person to another than (2) the other shall act on his behalf and subject to his control, and (3) consent by the other so to act: Chalupiak v. Stahlman, 368 Pa. 83, 81 A.2d 577 (1951); Restatement (Second), Agency § 1(1) (1958). Such agency results only if there is an agreement for the creation of a fiduciary relationship with control by the beneficiary: Rosenberg v. Cohen, 370 Pa. 507, 88 A.2d 707 (1952); Restatement (Second), Agency § 1, comments a and b (1958). 'The right of control by the principal may be exercised by prescribing what the agent shall or shall not do before the agent acts, or at the time when he acts, or at both times * * *. Further, the principal has power to revoke the agent's authority, although this would constitute a breach of his contract with him * * *. The control of the principal does not, however, include control at every moment; its exercise may be very attenuated and, as where the principal is physically absent, may be ineffective:' Restatement (Second), Agency § 14, comment a. Since an agent who is not a servant is not subject to any right of control by his principal over the details of his physical conduct, the responsibility rests upon the agent alone, and the principal is Not liable, for harm caused by his unauthorized negligent physical conduct: Commonwealth v. Minds Coal Mining Corp., 360 Pa. 7, 60 A.2d 14 (1948); Restatement (Second), Agency § 250 (1958). Thus it has long been said to be the general rule that there is no vicarious liability upon the principal in such case: Prosser, The Law of Torts § 70 (3d ed. 1964).

A master is a species of principal, and a servant is a species of agent:' Restatement (Second), Agency § 2, comment a. 'A master is a principal who employs an agent to perform service in his affairs and who controls or has the right to control the Physical conduct of the other in the performance of the service. A servant is an agent employed by a master to perform service in his affairs whose Physical conduct in the performance of the service is controlled or is subject to the right to control by the master:' Restatement (Second), Agency § 2(1) and (2) (Emphasis added.). Thus a master not only controls the results of the work but also may direct the manner in which such work shall be done, and a servant, in rendering the agreed services, remains entirely under the control and direction of the master: Joseph v. United Workers Assn., 343 Pa. 636, 23 A.2d 470 (1942); McColligan v. Penna. R.R. Co., supra. 'Those rendering service but retaining control over the manner of doing it are not servants. They may be agents, agreeing only to use care and skill to accomplish a result and subject to the fiduciary duties of loyalty and obedience to the wishes of the principal * * *:' Commonwealth v. Minds Coal Mining Corp., supra, 60 A.2d at 17. Because a master has the right to exercise control over the physical activities of the servant within the time of service, he Is vicariously liable for the servant's negligent acts committed within the scope of his employment: Restatement (Second), Agency § 219 (1958); Prosser, The Law of Torts § 69 (3d ed. 1964). Therefore, the master is likewise barred from recovery against a negligent defendant by the contributory negligence of his servant acting within the scope of his employment: Restatement (Second), Torts § 486 (1965); Prosser, The Law of Torts § 73 (3d...