Fuller v. Palazzolo

• Decision Date: 31 January 1938
• Docket Number: 113,112,109
• Citation: 197 A. 225,329 Pa. 93
• Parties: Fuller v. Palazzolo et al., Appellants
• Court: Pennsylvania Supreme Court

197 A. 225

329 Pa. 93

Fuller v. Palazzolo et al., Appellants

Nos. 109, 112, 113

Supreme Court of Pennsylvania

January 31, 1938

Argued September 28, 1937

Appeals, Nos. 109, 112 and 113, March T., 1937, from judgments of C.P. Erie Co., Feb. T., 1935, No. 17, in case of Helen Fuller v. Michael Palazzolo and Joseph De Wall, and Fruehauf Trailer Company. Judgment against Michael Palazzolo and Joseph De Wall affirmed; judgment against Fruehauf Trailer Company reversed.

Trespass for wrongful death. Before WAITE, P.J.

The opinion of the Supreme Court states the facts.

Verdict for plaintiff and against all defendants in sum of $9,513.50. Defendants each appealed.

Errors assigned, among others, were various rulings on evidence.

The judgment against Michael Palazzolo and Joseph De Wall is affirmed.

The judgment against the Fruehauf Trailer Company is reversed and is here entered for that defendant, non obstante veredicto.

William W. Knox, with him Robert J. Firman, for appellants, Nos. 112 and 113.

Henry A. MacDonald, with him A. Grant Walker, W. Pitt Gifford, of Gunnison, Fish, Gifford & Chapin, for appellant, No. 109.

T. P Dunn, with him William J. Dale, Wayne Gleeten, of Hosbach &amp Gleeten, and John E. Dwyer, for appellee.

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

OPINION

MR. JUSTICE MAXEY:

Plaintiff, on behalf of herself and two minor children, brought an action in trespass to recover damages for the death of her husband, Merle Fuller. The latter, while mowing a lawn at about 2 p.m. on June 7, 1934, was run down by a "truck-tractor" to which was attached a "semi-trailer," i.e., a trailer-chassis (hereinafter referred to as the trailer), which truck, apparently being out of control and running at an excessive rate of speed, left the north side of the pavement and hurtled onto the lawn where Fuller was working, instantly killing him. This lawn was located near the village of Harborcreek, Erie County. The trailer which was attached to the truck was the property of codefendant, the Fruehauf Trailer Company (hereinafter referred to as the trailer company), a Michigan corporation engaged in the manufacture of trailers, which entered into a contract with Palazzolo, the owner of the truck, for him to tow the trailer from its plant in Detroit to a customer in Buffalo, New York. The consideration was $40. DeWall, the driver of the truck, was an employee of Palazzolo. He went to the delivery yard of the trailer company and secured the "Heavy Duty Fruehauf Semi-trailer" for transportation on its own wheels, but not under its own power, to its destination. This trailer had affixed to its rear a license tag of the trailer company. The truck-tractor with certain accessories, weighed about 4,200 pounds and the trailer weighed about 3,000 pounds.

According to undisputed testimony, the accident occurred when the left front wheel of the truck-tractor "locked" as the driver swung to the left to pass an automobile which had stopped on the highway in front of him. This "locking" of the wheel was, according to testimony, due to grease which had gotten in between the brake lining and the drum, this fact being additional evidence of want of care on the part of the owner of the truck-tractor and his employees. The truck went over 250 feet before it could be stopped and within that space it rolled a rock two feet or more in diameter over thirty feet, and then struck the deceased. Witnesses testified that the speed of the truck was from forty to forty-five miles an hour. The driver said he was operating it from 35 to 37 miles an hour.

The statement of claim charged "each and all the defendants" with negligence in the following particulars: "(a) in violating the statutes of the State of Pennsylvania pertaining to brakes, (b) in hauling a heavy semitrailer without brakes of any kind in service, (c) in having the brakes of the truck inefficient and faulty, (d) in violating the statutes of the State of Pennsylvania pertaining to speed and control of trucks and semitrailers on the highways, (e) in operating the truck and semi-trailer at a speed of approximately forty-five miles per hour." The other allegations were violations of the statutes pertaining to passing motor vehicles, passing another motor vehicle at a high and dangerous rate of speed, and general negligence.

Suit was brought against "each and all" three defendants without any differentiating between them, to wit: Palazzolo, the owner of the truck, De Wall, the driver, and the Fruehauf Trailer Company, the owner of the trailer.

After trial the jury returned a verdict against all three defendants and in favor of plaintiff and her children in the sum of $9,513.50; $513.50 was for funeral expenses. All defendants filed motions for new trial and for judgment n.o.v. After argument the court in banc overruled the motions and ordered judgment entered on the verdict. Thereafter the court in banc heard a reargument on the motions and again discharged them. These appeals followed.

This case naturally divides itself into two parts: (1) the alleged negligence of defendants Palazzolo and De Wall, and (2) the alleged negligence of the Fruehauf Trailer Company.

In the appeal of Palazzolo and De Wall, the first "question involved" is as follows: "Was it prejudicial error for the court to instruct the jury that on June 7, 1934, the law of Pennsylvania required brakes on truck tractors and semi-trailers to be connected, and to refuse to instruct that there was no such requirement in the law?" This alleged error forms the fifth "error" assigned by these two defendants. This assignment will be discussed in connection with the sixth and twelfth assignments. The sixth is based upon the refusal of the court below to affirm defendant's sixth point as follows: "The laws of Pennsylvania do not require that brakes on semi-trailers be connected with those on the truck-tractor and failure of the defendants in this case so to connect the brakes of the semi-trailer with those of the truck-tractor cannot be considered as negligence on their part, unless you find that a reasonable and prudent man under these circumstances would have so connected these brakes." The twelfth assignment is based upon the overruling of defendants' motion for a new trial.

In its opinion refusing a new trial and refusing judgment n.o.v., the court said: "This [6th] point might have been affirmed, for at the time of the accident there was no requirement that the brakes on the trailer be connected with those on the tractor (since changed by Section 2 of the Act of July 16, 1935, P.L. 1056). But this point was refused without reading and its refusal therefore does not constitute grounds for a new trial since the subject matter of the point was fully covered elsewhere in the general charge. See Quinlan & Robertson v. Rundle, 273 Pa. 479 ."

The applicable portion of the court's charge is as follows: "You would have to find that there was negligence in the operation of this truck which was the proximate cause of the injury sustained, before you could find a verdict against the defendants, or any of them. Even though it were required by law, as it seems to be in Pennsylvania, that they shall be equipped with brakes and that the brakes shall be in use, nevertheless you would have to find, if an accident occurred, that that or some other negligence on the part of the defendant was the proximate cause of the injury, even though it were in violation of a statute. And the same would apply to the speed, although it might be in excess of a speed regulation of the Commonwealth of Pennsylvania, nevertheless you would have to find that the speed or some other failure in the operation of the vehicle was the proximate cause of the injury, before you could find a verdict against the defendant."

In the excerpt cited the erroneous statement was the phrase, "as it seems to be in Pennsylvania" whereas in fact at that time there was no law in this State requiring trailers to be equipped with brakes. However, we think that this erroneous statement did not rise to the degree of "reversible error," because the trial judge made it clear to the jury that any verdict found against any of the defendants would have to be predicated on an affirmative finding of negligence and not on a violation of a statute. The fifth, sixth and twelfth assignments are therefore overruled.

The first, third and seventh assignments of error are based upon the failure of the statement of claim to set forth the names of the minor children of the deceased. Paragraph 9 of the statement of claim reads as follows: "That the said Merle Fuller at the time of his death left surviving him his wife, the plaintiff, Helen Fuller, with whom he lived as her husband, together with two minor children." No rule for a more specific statement of claim was asked for. The Act of April 26, 1855, P.L. 309, 12 PS secs. 1602, 1603, provides: "Section 1. . . . That the persons entitled to recover damages for any injury causing death, shall be the husband, widow, children or parents of the deceased, and no other relative; and the sum recovered shall go to them in the proportion they would take his or her personal estate in case of intestacy, and that without liability to creditors. Section 2. That the declaration shall state who are the parties entitled to such action; the action shall be brought within one year after the death, and not thereafter."

In Haughey v. Pittsburg Ry. Co., 210 Pa. 367, 369, 59 A. 1112, this court said in reference to actions for damages caused by negligence and the designation of the parties bringing the action: "It should have been averred in the statement that she and the two children were the parties entitled to the damages recovered in...