Balashaitis v. Lackawanna County

• Decision Date: 18 March 1929
• Docket Number: 14,15
• Citation: Balashaitis v. Lackawanna County, 296 Pa. 83, 145 A. 691 (Pa. 1929)
• Parties: Balashaitis et ux., Appellant, v. Lackawanna County
• Court: Pennsylvania Supreme Court

145 A. 691

296 Pa. 83

Balashaitis et ux., Appellant, v. Lackawanna County

Nos. 14, 15

Supreme Court of Pennsylvania

March 18, 1929

Submitted January 28, 1929.

Appeals, Nos. 14 and 15, Jan. T., 1929, by plaintiffs, from order of C.P. Lackawanna Co., Oct. T., 1924, No. 875 refusing to take off nonsuit, in case of James Balashaitis et ux. v. Lackawanna County. Affirmed.

Trespass for personal injuries and loss of an automobile. Before NEWCOMB, P.J.

The opinion of the Supreme Court states the facts.

Nonsuit refusal to take off. Plaintiffs appealed.

Error assigned was refusal to take off nonsuit, quoting order.

The judgment is affirmed.

Paul Dzwonchyk, Stanley F. Coar and David J. Reedy, for appellants. -- The county was liable: County Commissioners' Petition, 255 Pa. 88; Bodge v Phila., 167 Pa. 492; Briegel v. Phila., 135 Pa. 451; Fox v. Phila., 208 Pa. 127; Scibilia v. Phila., 279 Pa. 549; Dixon v. Twp., 49 Pa.Super. 148.

Taylor & Lewis and Ralph W. Rymer, for appellee. -- The county of Lackawanna can not be made responsible for the negligent act of one of its employees while operating a motor vehicle upon a highway in the course of his employment: Bucher v. Northumberland Co., 209 Pa. 618; Hubbard v. Crawford Co., 221 Pa. 438; Cousins v. Butler Co., 73 Pa.Super. 86; Collins v. Com., 262 Pa. 572; Scibilia v. Phila., 279 Pa. 549.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE SCHAFFER:

In this action plaintiffs seek to recover damages from the County of Lackawanna, for personal injuries and for the loss of an automobile, caused by the alleged negligence of an employee of the county in causing a truck, which he was driving belonging to it, to collide with plaintiff's automobile, in which they were riding.

The trial judge was of the opinion that at the time of the collision defendant's truck was engaged in the performance of a governmental function and also that the county could be held liable for the torts of its servants only as the result of some statute fixing liability, and for these reasons entered a compulsory nonsuit against plaintiffs, which the court in banc refused to take off; from this refusal plaintiffs appeal.

The truck in question had been engaged in transporting workmen employed by the county, from the City of Scranton, the county seat of Lackawanna County, to a point about ten miles from the city, where a county road was out of repair. The workmen, who were taken there for the purpose of putting the road in condition, were left at the scene of their labors and the truck returned to the City of Scranton; while traversing one of its streets the alleged negligent collision took place.

Plaintiffs argue that the Act of May 11, 1911, P.L. 244, provides that the duty of keeping county roads in repair shall devolve upon the county and that in Clark v. Allegheny County, 260 Pa. 199, we decided that the statutory mandate to repair imposed upon the county liability for damages due to its failure to do so. They also argue that Brooks v. Buckley & Banks, 291 Pa. 1, Bodge v. Phila., 167 Pa. 492; Briegel v. Phila., 135 Pa. 451, and Fox v. Phila., 208 Pa. 127, point the way to their right of recovery and that they are within the exceptions adverted to in Scibilia v. Phila., 279 Pa. 549, so far as injuries ascribable to the highways are concerned.

If the collision which injured them had been caused by a defect in a county highway, there might be strength in appellants' position, but such is not the fact. It happened ten miles from the county road, to which the highway repairmen had been transported and had no relation whatever to the county road or its lack of repair. The mere fact that the truck had been used to carry the county's employees to their work of repairing one of its roads would not bring the case within the exception pointed out in the Scibilia Case, much less would it when the truck had terminated its function in this regard. To warrant a recovery, plaintiffs must prove that the truck was not engaged in some governmental function of the county, and this they have not done, or be able to point to some statute fixing the county with liability such as the Act of May 11, 1927, P.L. 886, section 620, which provides that every county shall be liable for damages caused by the negligent operation of an automobile by its employee upon a highway. This act has no application to the pending case, as it was passed subsequent to the happening of the accident. "Counties are very generally recognized as quasi-corporations upon which duties wholly involuntary are imposed. They possess no power and can incur no obligations not authorized by statute": Bucher v. Northumberland Co., 209 Pa. 618; Hubbard v. Crawford Co., 221 Pa. 438; Cousins v. County of Butler, 73 Pa.Super. 86.

We think what was said in the Scibilia Case, in which the authorities were exhaustively reviewed, covers the situation which we have in the instant case. The syllabus of that case correctly sums up the law as the opinion announces it "The implied common law...