Landis v. Conestoga Transp. Co.

• Decision Date: 20 March 1944
• Docket Number: 254,252,251,253
• Parties: Landis, Admrx., v. Conestoga Transportation Company et al., Appellant. (No. 1); Kuhn, Admr., v. Same
• Court: Pennsylvania Supreme Court

36 A.2d 465

349 Pa. 97

Landis, Admrx., v. Conestoga Transportation Company et al., Appellant. (No. 1);

Kuhn, Admr., v. Same

Nos. 251, 252, 253, 254

Supreme Court of Pennsylvania

March 20, 1944

Argued January 14, 1944

Appeals, Nos. 251-254, Jan. T., 1944, from judgments of C.P Lancaster Co., 1942, March and Sept. Terms, Nos. 68 and 70 and 64 and 69, respectively, in cases of Maud E. Landis Administratrix of Estate of Betty Jane Landis, v. Conestoga Transportation Company; John L. Warner; Claude S. Warner; and O. A. Miller and Clarence Miller, trading and doing business as Miller Motor Freight Service; and John H. Kuhn, Administrator of John H. Kuhn, Jr., v. Same. Judgments affirmed.

Actions for wrongful death. Before WISSLER, J.

Verdicts, for plaintiff in each action for minor's estate, in sum of $7,500, against defendants, Conestoga Transportation Company and Miller Motor Freight Service, each verdict including a provision that each of these defendants pay one-half of the verdict. Motions by Miller Motor Freight Service for judgment n.o.v. and for new trial refused; motions by Conestoga Transportation Company for new trial refused; and judgments entered on verdicts. Miller Motor Freight Service appealed.

Judgments affirmed.

Joseph W. Henderson, with him Harvey B. Lutz, for appellants, Miller Motor Freight Service.

Jacques H. Geisenberger, for appellee, Landis, Admrx.

J. Hay Brown, Jr., with him B. M. Zimmerman, for appellee, Kuhn, Admr.

Paul A. Mueller, for Conestoga Transportation Co., appellant Nos. 269-272, appellee, Nos. 251-254.

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

OPINION

MR. HORACE STERN, JUSTICE

These are actions brought by the Administratrix of the Estate of Betty Jane Landis, deceased, and the Administrator of John H. Kuhn, Jr., deceased, against Conestoga Transportation Company, John L. Warner, Claude S. Warner, and O. A. Miller and Clarence Miller trading as Miller Motor Freight Service, for the recovery of damages for the deaths of Betty Jane Landis, a fifteen year old girl, and John H. Kuhn, Jr., a sixteen year old boy, alleged to have been caused by the negligence of defendants.

Briefly summarized from a record of seven hundred pages, the facts are that on the night of January 8, 1942, these two young people were waiting on the premises of a gasoline service station abutting the three-lane concrete Lincoln Highway for an eastbound bus to take them to Lancaster. A tractor-trailer owned by John L. Warner, leased to Miller Motor Freight Service, and operated by Claude S. Warner, was traveling east in the south lane of the highway. A bus of the Conestoga Transportation Company was traveling west in either the north or central lane, and, on reaching a point slightly west of the service station, it made a left-hand turn with the apparent intention of heading back to Lancaster. The result was a collision between the bus and the tractor, causing a tank of gasoline on the latter to explode; the bus then veered northward across the highway, while the tractor-trailer swerved off the south side, the trailer overturning and the tractor, then on fire, striking Betty and John and causing their fatal injuries.

The jury returned verdicts for plaintiffs against Conestoga Transportation Company and Miller Motor Freight Service; no verdict was rendered as to John L. Warner (who was not in any event liable) or as to Claude S. Warner. The omission of a verdict against Claude S. Warner is one of the reasons now urged by appellant, Miller Motor Freight Service, why a new trial should have been granted by the court below; it argues that its liability, if any, could only be derived from his negligence, he being its employe, and in the absence of any finding against him a verdict against it cannot be sustained. When the verdicts were announced by the jury, however, not only did counsel for Miller Motor Freight Service not make any attempt to have the court instruct the jury to retire and agree upon a finding with respect to Claude S. Warner, but, on the contrary, resisted a motion to that effect made by counsel for Conestoga Transportation Company. Under such circumstances Miller Motor Freight Service has waived whatever rights it might...