D'Alessandro v. Barfield

• Decision Date: 03 January 1944
• Docket Number: 189,190
• Parties: D'Alessandro et al. v. Barfield et al., Appellants
• Court: Pennsylvania Supreme Court

35 A.2d 412

348 Pa. 328

D'Alessandro et al. v. Barfield et al., Appellants

Nos. 189, 190

Supreme Court of Pennsylvania

January 3, 1944

Argued November 29, 1943.

Appeals, Nos. 189 and 190, Jan. T., 1943, from judgments of C.P. No. 5, Phila. Co., March T., 1942, No. 2778, in case of Alfred D'Alessandro, a minor, by his guardian Pasquale D'Alessandro, and Pasquale and Philomena D'Alessandro, in their own right, v. Clarence Barfield et al. Judgments affirmed.

Trespass for personal injury. Before GORDON, P.J.

Verdicts for minor plaintiff in sum of $11,000, and for parent plaintiffs in sum of $1795., against defendants Barfield and Fisher, and verdicts for other defendants, and judgments thereon. Defendants appealed.

The judgments are affirmed.

J. W McWilliams, with him G. A. Troutman, of McWilliams, Wagoner &amp Troutman, for appellants.

Robert M. Bernstein, with him Milford J. Meyer and Gabriel Berk, for appellees.

Before MAXEY, C.J., DREW, LINN, STERN, PATTERSON and STEARNE, JJ.

OPINION

MR. CHIEF JUSTICE MAXEY:

This appeal is from the refusal of the court below to enter judgment for the defendant non obstante veredicto.

Plaintiffs' action in trespass was brought against the defendants Barfield and Fisher, trading as Wissahickon Dairies, and one John J. Coyle, for the recovery of damages for personal injuries sustained by the minor plaintiff in a collision between two motor trucks owned by the respective defendants. The jury rendered verdicts only against the partnership, the Wissahickon Dairies, in the amount of $11,000 for the minor plaintiff and $1795.00 for the parent plaintiffs.

The defendants, Barfield and Fisher, trading as Wissahickon Dairies, were engaged in the milk business, delivering milk to private homes in and around the City of Philadelphia. In the conduct of their business, they operated a fleet of trucks. The operator of one of these trucks was Michael Palko. In the early morning of October 10, 1941, Palko was driving his truck on City Line Avenue, and the plaintiff who was riding with him soon fell asleep. The morning was very foggy and rainy. When the truck reached a point between 51st and 52nd Streets, Palko saw Coyle's truck parked "right up to the curb" on the north side of City Line Avenue across the street from a lunch stand where the driver of the truck was "getting something to eat". He was then about ten or fifteen feet away from it and he testified that he turned the truck over to the left and applied the brakes but it was too late, as he was almost on top of it. He also testified "there were no lights on the truck. It was foggy and I couldn't see until I got on top of it and I caught the right front part of my truck against his left rear and it pushed the whole side of the truck in and pinned Alfred D'Alessandro in the cab." His car was traveling at that time about 15 or 20 miles an hour. He explained that he couldn't see much more than ten or fifteen feet. Under the circumstances, the negligence of the driver was properly conceded. The minor plaintiff, then 15 years of age, was seriously injured, receiving a compound fracture of the right leg, dislocated right hip leaving him with some impairment and a deformity, and also severe injuries to his head.

The minor plaintiff resided in the neighborhood of the dairy and occasionally had helped the appellant's drivers in making their early morning deliveries. There was no agreement for compensation but he received gratuities from the driver; they were customarily 75 or a dollar, and his breakfast. On the evening before the accident, this boy met Palko and made arrangements to help him distribute the milk the next morning. He appeared at the defendant's premises about 2:30 A.M. from where he went to the home of Palko to awaken him. When Palko arrived the boy helped him load the truck but did no other work on the premises. This was the first time he had worked with Palko. Fisher, one of the defendants, was on the platform watching the two load the truck and was talking to the driver while the boy sat beside him. It is clear that the latter was riding on the truck with the knowledge and (by inference) consent of this partner.

The sole question for our consideration is whether this minor plaintiff at the time of the accident was the defendant's employee within the provisions of Section 302 (b) of the Workmen's Compensation Act of 1915, as re-enacted by Section 203 of the Act of June 21, 1939, P.L. 520, 77 PS Sec. 462. If he was, since neither party rejected the Act, the plaintiffs' exclusive remedy was a proceeding to recover compensation under the Act, and not by this common law action.

The court below held that "the minor plaintiff was not at that time a statutory employee of the defendants within the meaning of" that "section . . . and hence that the present action was properly brought in trespass. . . ." This decision was based upon our decision in Rich Hill Coal Company v. Bashore, 334 Pa. 449, 7 A. (2) 302.

The applicable section reads as follows: "An employer who permits the entry upon premises occupied by him or under his control of a laborer or an assistant hired by an employee or contractor, for the performance upon such premises of a part of the employer's regular business entrusted to such employee or contractor, shall be liable to such laborer or assistant in the same manner and to the same extent as to his own employee". This was the language of Section 302(b) of the original Compensation Act of 1915 which was in force until 1937, when it was amended to read as follows: "An employer who permits a sub-contractor or employe to engage another, in whole or in part, in services furthering the employer's regular business entrusted to such employe or sub-contractor, shall be liable to the employe so engaged in the same manner and to the same extent as to his own employe whether said injury occurred upon premises occupied or controlled by the employer or not, provided only that the injury occurred in the course of employment." In 1938 we declared this amendment unconstitutional in the Rich Hill Coal Company case (supra), because we felt then, as we feel now, that the General Assembly has no authority to enact a law making an employer liable to the employee of a sub-contractor or employee employer on premises remote from the first employer's premises and over which he did not have the slightest control. Thereupon, the Act of 1939 now in force was passed re-enacting the language of the section...