Anello v. Murphy Motor Freight Lines, Inc.

Citation525 F.2d 276
Decision Date18 June 1975
Docket Number7,18,Nos. 6,D,s. 6
PartiesJohn ANELLO and Phyllis Anello, Plaintiffs-Appellees, v. MURPHY MOTOR FREIGHT LINES, INC., and Maislin Brothers Transport Limited, Defendants-Appellants, and Harrison Radiator Division of General Motors Corporation, Defendant. MURPHY MOTOR FREIGHT LINES, INC., Third-Party Plaintiff, v. MAISLIN BROTHERS TRANSPORT LIMITED et al., Third-Party Defendants. MAISLIN BROTHERS TRANSPORT LIMITED, Third-Party Plaintiff, v. GOOD'S TRANSPORTATION SERVICE, Third-Party Defendant-Appellant, and Harrison Radiator Division of General Motors Corporation, and Murphy Motor Freight Lines, Inc., Third-Party Defendants. ockets 73-2156, 74-1445, 73-2274.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

George T. Ganey, Jr., Buffalo, N. Y. (Cohen, Lombardo, Blewett, Fisher & Hite, Buffalo, N. Y., on the brief), for plaintiffs-appellees.

Edward J. O'Connor, Buffalo, N. Y. (Miller, Bouvier, O'Connor & Cegielski, Buffalo, N. Y., on the brief), for defendant-appellant Murphy Motor Freight Lines, Inc.

James S. McAskill, Buffalo, N. Y. (Ohlin, Damon, Morey, Sawyer & Moot, Buffalo, N. Y., on the brief), for defendant-appellant Maislin Brothers Transport Limited.

John J. Heffernan, Buffalo, N. Y. (Palmer, Heffernan, Wickser & Beyer, Buffalo, N. Y., on the brief), for third-party defendant-appellant Good's Transportation Service.

Before MOORE, OAKES and TIMBERS, Circuit Judges.

TIMBERS, Circuit Judge:

This appeal involves the consequences of a nail protruding from the floor of a trailer that punctured the right foot of John Anello while he was employed as a shipping foreman at the plant of the Fedders Corporation (Fedders) in Buffalo, New York, on October 29, 1968.

After a jury trial in the Western District of New York before John T. Curtin, Chief Judge, a judgment was entered on March 20, 1973 awarding John Anello $55,000 damages for his personal injuries and awarding his wife, Phyllis Anello, $6,500 on her derivative claim for loss of consortium and companionship. The judgment in this diversity action was entered against three defendants: Murphy Motor Freight Lines, Inc. (Murphy), Maislin Brothers Transport Limited (Maislin), and Good's Transportation Service (Good's). 1 Each of the the three defendants appeals from the judgment and from the order of the district court entered June 26, 1973 denying their motions to set aside the verdict, for judgment n. o. v., or for a new trial.

The essential questions on appeal involve the issues of liability on the part of Good's and Maislin; the propriety of the court's submission to the jury of John Anello's claim of loss of future earnings and impairment of earning capacity; and whether the verdicts in favor of both plaintiffs are excessive.

We affirm.

I.

In order to focus upon the asserted liability of the defendants, it is necessary to back up a bit from the occurrence of the accident on October 29, 1968.

On October 17 the trailer involved, which was owned by Murphy and was being hauled by a Murphy tractor, left Chicago with a cargo bound for Quebec, Canada. Murphy did not have authority to operate in Canada. It had an interchange agreement with Maislin, an authorized carrier in the Quebec area. The trailer therefore was switched to Maislin in Buffalo on October 22. Maislin made the Quebec delivery. It then took on a load of brass stripping in Montreal for delivery to Harrison in Lockport, New York. This load was shored by nailing 2 X 4s to the floor of the trailer. Since Maislin had no authority to operate in Lockport but had a concurrence agreement with Good's which was authorized to operate in Lockport, the loaded trailer was left at the Maislin terminal in Buffalo. There on October 25 the trailer was transferred to Good's which delivered it to Harrison in Lockport. Good's then returned the empty trailer to the Maislin terminal in Buffalo on October 28. On the same day Murphy picked up its trailer and spotted it for loading at the dock of the Fedders plant in Buffalo.

The sequence of control of the trailer therefore was Murphy to Maislin to Good's to Maislin to Murphy.

Anello sustained his injury on the morning of October 29 while he was engaged in helping to load the trailer referred to above. As a shipping foreman employed by Fedders, he was participating in the loading of automobile radiators on the trailer. While walking on the floor of the trailer, his right foot became impaled on the head of a nail protruding through the floor of the trailer. The nail pierced his shoe and punctured his foot. With the help of a fellow employee, his foot was pulled free and the shoe came off.

On appeal, Murphy understandably does not challenge the jury finding that it was negligent. It owned the trailer and had spotted it at the Fedders dock for loading where the accident occurred.

Maislin and Good's, however, contend that the district court erred in charging the jury on the issue of liability. They agree that the court properly charged that one who furnishes a trailer for use may be held liable for failure to exercise reasonable care to make it safe for the expected use or to warn of any danger known to him or which should have been known to him which ordinarily would not be discovered by the user. Kane v. Branch Motor Express Co., 290 F.2d 503, 507 (2 Cir. 1961). Maislin and Good's argue nevertheless that their respective duties ended when control of the trailer passed to the next carrier in sequence on an interchange receipt (Good's to Maislin, Maislin to Murphy). 2

The theory underlying this contention by Maislin and Good's is essentially lack of privity of contract. They say that, since only Murphy was in privity with Fedders, only Murphy owed a duty to Anello. We disagree.

We find those cases, many of which are cited by appellants, dealing with the liability of railroads in analogous situations to be applicable here. They indicate that the carrier's liability outlined in Kane, supra, 290 F.2d at 507, is imposed not on the basis of breach of contract but that of joint tortfeasors. Chicago, Rock Island & Pacific R.R. Co. v. Williams, 245 F.2d 397, 401-03 (8 Cir.), cert. denied, 355 U.S. 855 (1957); St. Louis-San Francisco Ry. Co. v. Ewan, 26 F.2d 619, 620 (8 Cir. 1928). The doctrine of privity of contract is not applicable. MacPherson v. Buick Motor Co., 217 N.Y. 382, 389-90, 111 N.E. 1050, 1053 (1916) (Cardozo, J.). The relinquishment of control and supervision of the trailer by one carrier and transfer of it to another does not exonerate the former from liability to a subsequent user. Albanese v. Southern Ry. Co., 131 F.Supp. 307, 309 (S.D.N.Y.1955); Bierzynski v. New York Central R.R. Co., 31 App.Div.2d 294, 297 N.Y.S.2d 457, 460-62 (4th Dept.1969), aff'd, 29 N.Y.2d 804, 277 N.E.2d 412, 327 N.Y.S.2d 365 (1971). Here there was good reason for the jury to infer that the nail on which Anello's foot was impaled was left in the floor of the trailer after the shoring for the brass stripping was removed in Lockport, that is, while the trailer was still in Good's possession and before it was transferred back to Maislin (and then to Murphy).

We hold that the questions of negligence, contributory negligence and proximate cause were correctly submitted to the jury under proper instructions and that the judgment of liability on the part of each of the appellants is adequately supported by the record. 3

II.

All appellants contend that the court erred in its submission to the jury of John Anello's claim of loss of future earnings and impairment of earning capacity resulting from the accident. We disagree.

At the time of the accident, Anello was earning approximately $8,800 per year at Fedders. After three separate operative procedures and approximately three months of being out of work, he returned to Fedders where he continued to work until August 1971, when he was laid off due to a decline in business. He later obtained a job at an annual wage of approximately $6,600 at the J. C. Penney department store where he was not required to take a physical examination.

The court carefully pointed out to the jury, in accordance with appellants' arguments, that Anello lost his job at Fedders not because of the accident, but because of a general lay-off, and that there was no evidence that he was ever refused a job because of failure to pass a physical examination. We think that Judge Curtin accurately and fairly summarized the crux of plaintiff's claim of loss of future earnings and impairment of earning capacity in his decision denying defendants' post verdict motions:

"It is always difficult to make an accurate determination of future loss because there are so many factors which enter into the calculation. Although plaintiff does not claim that the loss of his Fedders job was connected to the accident, the jury was entitled to consider his reduction in pay as some guide to what he would be able to earn in the future. Probably, if Fedders did not have a layoff, plaintiff would have been able to continue his employment at his old rate. But considerations which run between an old-time employee and his employer are not of concern when a man must seek new employment. Without question, plaintiff's ability to get about is impaired. 4 Within reasonable bounds, the jury is the body best able to make a practical judgment of how much this impairment is worth in dollars."

There was evidence that when Anello returned to Fedders he no longer could walk around as freely as he had prior to the accident. Although Fedders kept him at the same rate of pay, the jobs assigned to him required less leg work. His new job at J. C. Penney paid him less. From this evidence the jury reasonably could infer that, although Anello was paid the same by Fedders while he continued to work there because of the "considerations which run between an old-time employee and his employer", another company, understandably not concerned with such...

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