Capozi v. Hearst Publishing Co., Inc.

• Citation: 371 Pa. 503,92 A.2d 177
• Decision Date: 10 November 1952
• Docket Number: 7460
• Parties: CAPOZI v. HEARST PUB. CO., Inc., et al.
• Court: United States State Supreme Court of Pennsylvania

92 A.2d 177

371 Pa. 503

CAPOZI v. HEARST PUB. CO., Inc., et al.

No. 7460

Supreme Court of Pennsylvania

November 10, 1952

Argued October 3, 1952

Appeal, No. 206, March T., 1952, from judgment of Court of Common Pleas of Allegheny County, Oct. T., 1949, No. 631, in case of Vincent A. Capozi v. Hearst Publishing Company, Inc. and Jacob Wilder. Judgment reversed.

Trespass for personal injuries. Before MARSHALL, J.

Verdict for plaintiff in the sum of $60,000., remitted to $40,000 and judgment thereon. Defendants appealed.

Judgment is reversed and a venire facias de novo, is awarded.

Arthur M. Grossman and Leonard Mendelson , for appellants.

Charles J. Margiotti , with him Harry Savage and Margiotti & Casey , for appellee.

Before STERN, STEARNE, JONES, CHIDSEY and MUSMANNO, JJ.

OPINION

MR. CHIDSEY, JUSTICE

Plaintiff, Vincent A. Capozi, brought an action in trespass against Hearst Publishing Company, Inc., and Jacob Wilder to recover damages for personal injuries resulting from the latter's negligent driving of a truck. The Hearst Publishing Company filed an answer denying any agency relationship between itself and the individual defendant. A jury rendered a verdict of $60,000 against both defendants. The defendants together filed motion for new trial and defendant, Hearst Publishing Company, separately filed motion for judgment in its favor non obstante veredicto .

Prior to argument on these motions, defendants petitioned for and the court issued a rule upon plaintiff to show cause why he should not carry out the terms of an alleged agreement of settlement made by counsel for the parties prior to the verdict, or suffer a decree against him for $22,500 (the claimed amount of settlement) and record costs in satisfaction of his cause of action. The plaintiff filed an answer to this petition and rule, and depositions were taken. The lower court in its opinion dismissing the motions for new trial and judgment non obstante veredicto , with reference to the rule issued said that "... the case was apparently settled as far as counsel was concerned, but there is no evidence that the plaintiff agreed to anything his counsel said, and the plaintiff had a contract with his attorney whereby the case could not be settled without the permission of the plaintiff. Therefore, we believe this case was properly submitted to the jury,...". As it appeared that the court intended to and in effect did discharge the rule, the parties stipulated that the appeal to this Court should be argued and decided as if an order had been entered expressly discharging the rule. The dismissal of the defendants' motion for new trial was conditioned upon remittitur being filed for all of the verdict in excess of $40,000. This remittitur was filed and judgment was entered against both defendants in the amount of $40,000. On this appeal therefrom defendants make various contentions.

We shall first consider the claim by both defendants that the alleged settlement agreement was binding upon the plaintiff. Under the rule issued, depositions were taken of the plaintiff, counsel for plaintiff, counsel for the defendants and the representative of defendants' insurance carrier, and the contract between plaintiff and his attorneys was introduced which contained a provision "Said attorneys shall have full power to settle or compromise said suit or suits as may appear to them to my best interest, but, in no event, for a sum less than that expressly approved by me;...". Negotiations for settlement of the case had been carried on for several weeks, prior to and during the course of the trial. They appeared to have culminated in what occurred in the trial judge's chambers when counsel for both parties met there with the trial judge. As indicated in the finding contained in the lower court's opinion, above quoted, there appeared to have been an agreement between counsel for settlement of the case at $22,500, and the real question at issue was whether plaintiff's counsel were authorized to agree to a settlement in such amount. Appellants make no claim of ratification by plaintiff of his attorneys' act as in Yarnall v. Yorkshire Worsted Mills , 370 Pa. 93, 87 A.2d 192.

In their brief appellants state, "We do not question the well established principle that an attorney's mere status as attorney in the case does not vest him with authority to settle his client's case without his client's consent. We submit, however, that there is sufficient evidence in the record to justify the conclusion that the plaintiff himself had authorized his attorney to settle the case for $22,500.00."

In their depositions, the plaintiff and his attorneys denied that authority was given. Appellants review the testimony and forcibly argue that the actions of plaintiff and his attorneys throughout the extended negotiations contradict their assertions in this regard. However, there was competent evidence to support the finding of the court below that there was no settlement of the case binding upon or enforceable against the plaintiff, and we cannot say that the court below abused its discretion in arriving at such conclusion.

Defendant Hearst Publishing Company contends that judgment non obstante veredicto in its favor should have been granted because of the failure of plaintiff to prove the existence of a master-servant relationship between it and the individual defendant. In support of this contention the publishing company first claims that there was no evidence introduced to connect it with any of the events or personalities involved in the accident. The truck which ran into plaintiff was driven by the defendant Wilder and was being used for distribution of a newspaper daily, the "Pittsburgh Sun-Telegraph". Although the named defendant was Hearst Publishing Company, Inc., the case was tried on the theory or assumption that the "Sun-Telegraph", or "Sun-Tele" as it is popularly known, was the codefendant with Wilder. Throughout the testimony bearing upon Wilder's status either as an independent contractor or employe of his codefendant, the latter was invariably referred to as "Sun-Telegraph". The court in its charge referred to the "Sun-Telegraph" as the defendant, at one time stating to the jury: "Now, then, the defendant says -- they have two different defenses. The Sun-Telegraph, which is owned by the Hearst papers, says this man was not their employee and, therefore, 'We are not responsible for his negligence. He was an independent contractor.'", and instructed the jury: "You can bring them [verdicts] in against Mr. Wilder and the Sun-Tele or you can bring it in against either of them, and I think it would be foolish to bring it in against the Sun-Tele if you do not bring it in against Wilder." The trial judge at the conclusion of his charge said: "Is there anything else that either side would like me to charge on?". Various requests were then made in which the corporate defendant was referred to by counsel on both sides as "Sun-Tele" or "the newspaper". At no time did counsel for the defendant Hearst Publishing Company seek any correction by the court in its charge in this respect, and although he moved for a compulsory nonsuit as to the corporate defendant and filed a point for binding instructions in its favor, in neither case was it placed upon the ground that no testimony had been adduced involving the Hearst Publishing Company.

Defendants' counsel proceeded throughout the trial as if "Sum-Telegraph" or "Sun-Tele" and the named defendant, Hearst Publishing Company, were synonymous or identical, acquiesced in the lower court's similar treatment of the corporate defendant, and it would be unfair and unjust under the circumstances to now permit reliance upon this misnomer to which defendant throughout the trial subscribed. ^[1] Cf. Skocich et al. v. F. J. Boutell Driveaway Company , 317 Pa. 26, 176 A. 19.

We turn to the more substantial argument in support of the contention now being considered: Should the jury have been permitted to find the existence of a master-servant relationship between the two defendants? In order to connect and impose liability upon the corporate defendant, plaintiff relied in the presentation of his case upon the presumption of ownership and agency arising out of the display of a defendant's name upon a business truck: Hartig v. American Ice Co ., 290 Pa. 21, 137 A. 867. The plaintiff's case established that the truck which ran into plaintiff and driven by Wilder, had the words "Sun-Telegraph" in large letters on both of its sides. The words were not permanently painted thereon but appeared on posters that were pasted on the sides of the truck, and there was testimony that in addition to the words "Sun-Telegraph" the posters served to advertise articles that would appear in current or future editions of the paper. Appellants argue that the presumption as to ownership and agency applies where the name of the defendant is permanently painted on the truck, but that there is no reasonable basis for inferring that a vehicle is owned or used in the business of one whose product is advertised on the vehicle; that it is common knowledge that certain companies utilize their vehicles to advertise the products of other companies. We can see no substantial difference in the applicability of the presumption in question, between a name painted on a truck or printed on a poster attached to the truck if it so predominates in the sight of the passing public to reasonably permit the inference of agency and ownership. A poster may well be used to not only denote proprietorship but to permit change in the advertisement of the proprietor's own product.

The defendant Wilder testified that the posters, which were 6 feet by 3 feet in size, were put on every week by an...