Rucinski v. Cohn

• Court: United States State Supreme Court of Pennsylvania
• Writing for the Court: SCHAFFER, J.
• Citation: 146 A. 445
• Parties: RUCINSKI v. COHN et al.
• Decision Date: 13 May 1929

146 A. 445

RUCINSKI
v.
COHN et al.

Supreme Court of Pennsylvania.

May 13, 1929.

Appeal from Court of Common Pleas, Allegheny County; Richard W. Martin, Judge.

Action by Anna Rucinski against A. H. Cohn and another, doing business as A. H. Cohn & Son. Judgment for plaintiff, and defendants appeal. Reversed and rendered.

Argued before FRAZER,, SADLER, and SCHAFFER, JJ.WALLING, SIMPSON, KEPHART

Harry J. Nesbit, of Pittsburgh, and Zeno F. Henninger, of Butler, for appellants.

Cyrus A. Davis (of Eckles & Davis), of Pittsburgh, for appellee.

SCHAFFER, J. Plaintiff recovered a verdict and judgment in the court below for damages caused by the death of her husband, who was struck and killed by the fall of a large bucket weighing more than 600 pounds, forming part of the equipment of a railroad crane engaged in dismantling a coke plant; she averred the crane was being operated by an employe of defendants, A. H. Cohn & Son.

Defendants, appealing to us to set aside the recovery against them, contend that on the day of the accident, and for several days prior thereto, they had not operated the crane, but that it was being operated by Fried & Mann, to whom they had loaned it. It is also

146 A. 446

urged that no negligence was shown and that the deceased was but a bare licensee to whom the only duty owed was not willfully, intentionally, or wantonly to injure him. Consideration need not be given to the last proposition, as the case will be determined on the other grounds.

A careful reading of the entire record leads us to conclude that the court below hung defendants' liability on a very slender thread, not strong enough to support it. In their affidavit of defense, defendants admitted ownership of the crane. The testimony shows that they had turned it over, without charge, for the use of the partnership which was created to carry on the work of dismantling the plant as part of their contribution thereto. This partnership was really the coalescence of two firms, A. H. Cohn & Son, the present defendants, composed of A. H. Cohn and Harry Cohn, and Fried & Mann Company, the partners in which were Isadore Fried and Theodore Mann. The new partnership was formed on December 24, 1925, to carry on the work of wrecking the coke plant of the Allegheny Byproducts Coke Company at Glassport. Fried and Mann each had a one-third interest in the copartnership and A. H. Cohn & Son the other third.

Indisputably, it seems to us, on January 14, 1926, before the wrecking job was completed, the partners agreed that A. H. Cohn & Son should withdraw from the partnership and it should be dissolved, and that Fried and Mann should thereafter carry on the work. In consideration of their withdrawal, the Cohns were paid the amount of their original subscription to the firm, $6,000, and it was arranged that there should be delivered to them 100 tons of old rails which were on the property. The agreement is in writing, signed by Fried and Mann and by Harry N. Cohn for A. H. Cohn & Son. It recites that the latter sold for $1 and other considerations all their interest in the joint undertaking to Fried and Mann and that the partnership was settled. It contains a guaranty by Fried and Mann that Cohn & Son shall be released from the performance bond which had been executed by the partnership to the National Security Company. On the same date Cohn & Son signed a receipt to Fried and Mann for two checks recited as bearing that date, each for $3,000, "same, $6,000, representing any and all our interest in coke plant at Glassport. We sell out entirely to Mr. I. Fried and Theo. Mann." The two checks were produced and offered in evidence and conclusively show that the agreement of dissolution and receipt could not have been fabricated after the death of plaintiff's husband, which occurred January 17, 1926, as they are dated January 14th, were deposited in bank as shown by the bank's indorsements on January 15th, and went through the Pittsburgh Clearing House as shown by its stamped indorsement, one of them on January 16th, on which day, as shown by the stamp, it was paid; the other one did not get through the Clearing House until the 19th and was not paid until the 22d.

The oral testimony of those who were in position to know sustains the conclusion that the crane was not being operated by defendants. Clarence Miller, the crane operator, called as a witness by plaintiff, said that it was not. His testimony will be more particularly recited hereafter. Harry N. Cohn testified that, after the agreement of dissolution was signed on January 14th, Fried requested that he be permitted to use the crane for the balance of the week to give him the opportunity to get another, to which he (Cohn) assented and allowed the crane to remain in Fried's possession until Monday January 18th (the accident occurred on Sunday, the 17th), on which day it was moved, and that it was operated after the 14th and until it was removed by Fried & Mann ；；; that the wages of the crane operator during that time were not paid by Cohn & Son. He said that while the partnership lasted Fried and his brother, Louis Cohn, were in charge of the actual operations in dismantling the plant, and that after the dissolution Fried alone was, and his brother was not; that after January 14th Cohn & Son paid none of the wages (33 men were employed in the work), but since that date the wages were actually paid by Herbert Greaves, who never had been employed by defendants, who had been put in the place of Louis Cohn as foreman on January 14th, when the Cohns parted with their interest.

Fried testified to the dissolution of the partnership on January 14th and to Fried & Mann's purchase of Cohn & Son's interest therein. He said that on January 14th, after the dissolution, he hired Herbert Greaves to take the place of Louis Cohn as foreman of the job and that thereafter Louis Cohn did not...