Mitchell v. Marinelli

• Decision Date: 17 April 1947
• Docket Number: 3200
• Citation: 356 Pa. 517,52 A.2d 203
• Parties: Mitchell et ux. v. Marinelli (et al., Appellant)
• Court: Pennsylvania Supreme Court

52 A.2d 203

356 Pa. 517

Mitchell et ux. v. Marinelli (et al., Appellant)

No. 3200

Supreme Court of Pennsylvania

April 17, 1947

Argued March 26, 1947

Appeal, No. 21, March T., 1947, from judgment of C.P., Beaver Co., Sept. T., 1945, No. 106, in case of James S. Mitchell et ux. v. Michael Marinelli et al. Judgment affirmed.

Trespass for property damage. Before SOHN, J.

Findings and judgment for defendants, Marinelli and Gioia, and for plaintiffs and against defendants, Dilimone and Schreiber Trucking Company. Defendant, Schreiber Trucking Company appealed.

The judgment is affirmed.

Robert L. Orr , with him Leonard L. Ewing and Reed & Ewing , for appellant.

A G. Helbling, with him Richard P. Steward, for plaintiffs, appellees.

Myron E. Rowley , with him Ralph E. Smith and Rowley & Smith , for A. Gioia & Son, appellee.

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

OPINION

MR. JUSTICE PATTERSON

James S. Mitchell and Martha E. Mitchell, appellees, brought this action in trespass against Michael Marinelli, A. Gioia & Son, Joy Macaroni Company, and Schreiber Trucking Company, appellant, to recover damages sustained when a tractor trailer operated by Mike Dilimone, brought in as and additional defendant by Schreiber Trucking Company, crashed into appellees' garage. A voluntary nonsuit was entered in favor of Joy Macaroni Company. The amount of damages was stipulated to be $3,250.00. The jury was dismissed and the case, both as to law and facts, was determined by the trial judge. This appeal is from the decree of the court en banc affirming the order of the trial judge entering judgment: (1) in favor of Marinelli, (2) in favor of A. Gioia & Son, (3) against Mike Dilimone, and (4) against Schreiber Trucking Company.

Michael Marinelli, owner of a White tractor trailer truck, leased said truck to A. Gioia & Son on March 19, 1945, for a term of one month. This lease provided that lessee should have full possession and control and "in the event the Lessor, or a person designated by him, should operate the truck, said Lessor, or person so designated, shall be considered and shall be an employee of the Lessee...". Lessee assumed "full responsibility for any claims that may arise as a result of accidents, etc., while it (had) control and use of the... truck." On March 21, Marinelli secured Mike Dilimone to drive in his place. He drove the truck from Erie, Pennsylvania to Rochester, New York, where it was loaded with the product of A. Gioia & Son. This load was duly delivered to the consignees in Pittsburgh.

In conformity with the regulations of the Office of Defense Transportation, which required that all trucks carry a load each way on a trip of this distance, Dilimone went to the Pittsburgh office of Schreiber Trucking Company, appellant, where a truck rental agreement, also required by the Office of Defense Transportation, was executed. The agreement provided that appellant became the lessee of the truck and had "full possession and control of the vehicle leased... the operation of the leased vehicle is to be conducted under the full supervision and control of the Lessee, and the Lessee shall assume full responsibility to the general public...". The agreement further provided that the truck was to be operated by a driver furnished by the lessor, that lessor should pay all wages and salaries, that said driver was duly qualified under the rules and regulations of the Interstate Commerce Commission, and that "lessor further agrees to furnish the motor vehicle... in a safe, sound, mechanical working order... and that Lessor shall have the right and duty during the term of this lease to make such repairs as may be necessary to keep the vehicle in a safe, sound mechanical working order."

Dilimone, pursuant to orders from appellant, drove to New Brighton, Pennsylvania, where the truck was loaded. From there he proceeded toward Erie on a route designated by appellant and unfamiliar to him. When Dilimone reached Unionville Hill, on State highway route 68, the highway was covered with one to three inches of slush and snow. The hill was steep and the road crooked. Although the truck was equipped with five forward gears, he placed it in third gear before he began the descent. He proceeded around several "S" curves. When the truck began to pick up speed, he immediately applied the brakes but they failed to respond. To his right was a sheer drop but to the left of the highway was a broad berm. In an effort to slacken speed and protect his equipment, he turned to the left across the highway, and onto the berm. The rear end of his truck collided with a concrete abutment eliminating the braking power of the motor. Some distance beyond this point, the truck hit a barrel filled with with sand. Dilimone was proceeded downgrade and crashed into appellees' building.

The trial judge found as facts that A. Gioia & Son were obliged to keep the truck in safe and sound mechanical working order that at the time the truck came into the possession of the Schreiber Trucking Company, it was in a safe and sound mechanical...