East Broad Top Transit Co. v. Flood

• Decision Date: 27 May 1937
• Docket Number: 123
• Citation: East Broad Top Transit Co. v. Flood, 326 Pa. 353, 192 A. 401 (Pa. 1937)
• Parties: East Broad Top Transit Company v. Flood (Yankee Lines, Inc., Aplnt.)
• Court: Pennsylvania Supreme Court

192 A. 401

326 Pa. 353

East Broad Top Transit Company v. Flood (Yankee Lines, Inc., Aplnt.)

No. 123

Supreme Court of Pennsylvania

May 27, 1937

Argued April 19, 1937

Appeal, No. 123, Jan. T., 1937, from judgment of C.P Huntingdon Co., Sept. T., 1936, No. 219, in case of The East Broad Top Transit Company v. Ross B. Flood and Yankee Lines Inc. Judgment affirmed.

Trespass for property damage. Before FETTERHOOF, P.J.

The opinion of the Supreme Court states the facts.

Verdict for plaintiff against corporate defendant in sum of $3,900. No verdict rendered as to individual defendant. Motions by corporate defendant for judgment n.o.v. and for new trial refused and judgment entered on verdict. Corporate defendant appealed.

Error assigned, among others, was refusal of judgment n.o.v.

Judgment affirmed.

Thomas F. Bailey, with him Swirles L. Himes, for appellant.

Robert H. Henderson, with him John D. Dorris, for appellee.

Before KEPHART, C.J., SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES, JJ.

OPINION

MR. JUSTICE STERN:

Plaintiff's bus overtook and attempted to pass a truck on the road ahead and to the right of it. The truck, without warning, turned sharply left across the highway. A collision resulted. The present action is to recover for damage to the bus.

The statement of claim alleged that the driver of the truck failed to signal his intention to cut across the pathway of the approaching bus; also that the direction lights on the truck were not in working order.

Among the issues at the trial was the relationship of the defendants to one another. At the time of the accident the truck was driven by defendant Flood and the title was in his name. Plaintiff presented evidence to the effect that defendant Yankee Lines, Inc. was either the real owner or the lessee from Flood, the truck being operated on the freight-hauling business of Yankee Lines, Inc. and Flood being merely its employe.

The jury rendered a verdict as follows: "And now Oct. 3, 1936, we the jurors empaneled in the above entitled case, find verdict in favor of the plaintiff, the sum of thirty-nine hundred dollars, against Yankee Lines, Inc., defendant," and judgment was entered accordingly.

The present appeal is by the corporate defendant, and is confined to two complaints: first, that the trial judge instructed the jury that they could bring in a verdict against either defendant and refused to charge that they could not find a verdict against Yankee Lines, Inc., unless they also found a verdict against Flood; and, second, that the verdict rendered was inconsistent and should be set aside because it imposed liability upon Yankee Lines, Inc., but none upon Flood, although, as Flood's employer, the liability of Yankee Lines, Inc., could be only derivative.

Appellant apparently overlooks the fact that under the pleadings and the proofs it was possible for the jury to find that the accident was caused, not by any negligence of Flood in the operation of the truck, but by that of his employer in not having the signal light in working condition. With such a device on the truck the driver was justified in relying upon it and not employing other means of notifying approaching traffic of his intention to change his course. There was evidence that although he operated the switch the signal did not flash. This established a prima facie case against appellant because of the defective mechanism and justified a verdict against it on the basis of a primary liability.

The fact that the jury rendered no finding as to defendant Flood presents a more serious question and one which, on a proper record, might have justified appellant's attack. Neither as to a defect in the mechanism nor as to negligent operation were defendants joint tortfeasors. Whatever contrariety of opinion exists among other jurisdictions (18 R.C.L. 780, sec 241; 98 A.L.R. 1057 et seq.; 39 C.J. 1314, sec. 1515), under commonlaw practice in Pennsylvania, servant and master, not being joint tortfeasors, could not be sued jointly where the liability of the latter was based upon the doctrine of respondeat superior: Betcher v. McChesney, 255 Pa. 394. See Brennan v. Huber, 112 Pa.Super. 299, 303. But now, since the acts permitting the bringing in of additional defendants, whether liable over to the original defendant, or jointly or severally liable with him, or solely liable, ^[*] there is no objection to a plaintiff joining master and servant in one action, whatever the basis of their respective liabilities: Williams v. Kozlowski, 313 Pa. 219, 225-26; Parker v. Rodgers, 125 Pa.Super. 48, 52. The object of this legislation was to enable the parties involved in the litigation, whether as plaintiffs or defendants, to determine in the same action all of their obligations to one another in respect to the subject-matter of the suit. In the present case, if the jury's verdict against appellant was based upon the condition of the signal light, Flood would not be liable over to appel...