Caldwell v. Wilson Freight Forwarding Company, Civ. A. No. 69-559.

• Decision Date: 11 January 1971
• Docket Number: Civ. A. No. 69-559.
• Citation: 322 F. Supp. 43
• Parties: Harry CALDWELL, Plaintiff, v. WILSON FREIGHT FORWARDING COMPANY and Wilson Freight Company, Defendant, and Third-Party Plaintiff, v. DURO PAPER BAG MANUFACTURING COMPANY, Third-Party Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

322 F. Supp. 43

Harry CALDWELL, Plaintiff, v. WILSON FREIGHT FORWARDING COMPANY and Wilson Freight Company, Defendant, and Third-Party Plaintiff, v. DURO PAPER BAG MANUFACTURING COMPANY, Third-Party Defendant.

Civ. A. No. 69-559.

United States District Court, W. D. Pennsylvania.

January 11, 1971.

Donald J. Lee, Dougherty, Larrimer, Lee & Hickton, Pittsburgh, Pa., for plaintiff.

Richard L. Rosenzweig, Rosenzweig & Rosenzweig, Pittsburgh, Pa., for defendant Wilson.

Thomas A. Lazaroff, Meyer, Darragh, Buckler, Bebenek & Eck, Pittsburgh, Pa., for third-party defendant Duro.

OPINION

GOURLEY, District Judge:

This is a negligence action in which jurisdiction is founded upon diversity of citizenship. The action arises out of an accident occurring in Pittsburgh, Pennsylvania, on July 30, 1968, wherein the automobile which plaintiff was driving collided with a tractor-trailer. The immediate matter before the Court is a Motion for Summary Judgment filed by original defendant Wilson Freight Company (Wilson)¹. In the Motion, Wilson contends the undisputed facts demonstrate that the driver of the tractor-trailer unit in question was subject to the exclusive control of third-party defendant Duro Paper Bag Manufacturing Company (Duro), and not Wilson, at the time of the accident.

The Motion was heard before this member of the Court on September 18, 1970. No affidavits were offered, and the Court relies in its determination upon the parties' Answers to Interrogatories and the testimony of certain witnesses taken upon oral deposition. Upon review of the evidence developed in pre-trial discovery thus far, the Court concludes that the Motion should be denied.

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment only shall be granted upon a showing "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." In ruling upon a motion for summary judgment, all inferences of fact must be drawn against the movant and in favor of the party opposing the motion. 6 Moore's Federal Practice, § 56.15(3) at p. 2337. The similarity between the request for summary judgment and the request for a directed verdict has been observed, and it has been said that "a summary disposition * * * should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party." Sartor v. Arkansas Natural Gas Co., 321 U.S. 620, 624, 64 S.Ct. 724, 727, 88 L.Ed. 967 (1944).

Upon a Motion for Summary Judgment, both the opposing and moving party are entitled to any presumption that is applicable to the facts before the Court. 6 Moore's Federal Practice, § 56.15(3), at p. 2343. In diversity cases, a presumption accorded a conclusive effect by the forum state is deemed to be substantive law within the meaning of Erie R. R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), and a federal court clearly is bound to apply such a presumption when applicable to the case before it. However, Professor Moore recommends that presumptions accorded a lesser effect by the forum state also be applied by the federal courts since such presumptions may be determinative of the outcome of the case. 5 Moore's Federal Practice, § 43.08 at p. 1363.

In the instant case, answers to plaintiff's Interrogatories filed by both original defendant Wilson and third-party defendant Duro reveal that the tractor unit involved in the collision carried upon its door the name of defendant Wilson. It is settled Pennsylvania law that the presence of a defendant's name on a commercial vehicle raises a rebuttable presumption that the vehicle is owned by said defendant and that the driver of the vehicle is a servant of said defendant acting within the scope of his employment. Sefton v. Valley Dairy, 345 Pa. 324, 326, 28 A.2d 313 (1942); Young v. Wilky Carrier Corporation, 54 F.Supp. 912, 914 (E.D.Pa.1944). This presumption alone is sufficient under Pennsylvania law to take the case to the jury "unless the evidence to the contrary is clear, positive, credible, uncontradicted and so indisputable in weight and amount as to justify the court in holding that a verdict against it must be set aside as a matter of law." Hartig v. American Ice Co., 290 Pa. 21, 27, 137 A. 867, 869 (1927). Oral testimony rebutting the presumption, even though uncontradicted, is not sufficient to justify removal of the case from the jury; additional "physical" evidence is required. Hartig v. American Ice Co., supra, at pp. 27-28, 137 A. 867. According the aforesaid presumption the same effect it would be given by a Pennsylvania forum, the Court must consider whether the undisputed facts of record are sufficient to overcome the presumption and to warrant removing the case from the jury.

To rebut the presumption, defendant Wilson relies in great part upon the depositions of S. David Shore, who performs duties of general management for Duro, and Victor Surma, who was driving the tractor-trailer at the time of the accident. Shore testified upon deposition that he is Chairman of the Board of Directors of Duro and is responsible for the general management of the Company. Shore also is a Director, Vice-President and shareholder of Wilson. He stated that he usually spent four...