Tyler v. Macfadden Newspapers Corp.

• Decision Date: 23 November 1932
• Docket Number: 36-1932,35-1932
• Citation: 163 A. 79,107 Pa.Super. 166
• Parties: Tyler et al. v. MacFadden Newspapers Corp., Appellant
• Court: Pennsylvania Superior Court

163 A. 79

107 Pa.Super. 166

Tyler et al. v. MacFadden Newspapers Corp., Appellant

Nos. 35-1932, 36-1932

Superior Court of Pennsylvania

November 23, 1932

Argued September 28, 1932

Appeal by defendant from judgments of C. P. No. 2, Philadelphia County, September T., 1930, No. 7350, in the case of Roland Tyler, by his mother and next friend, Burnett Tyler and Burnett Tyler, in her own right v. MacFadden Newspapers Corporation.

Trespass to recover damages for personal injuries. Before Gordon, Jr. J.

The facts are stated in the opinion of the Superior Court and in the agreement entered into by MacFadden Newspapers Corporation and Morris Rosen, a copy of which agreement as executed is as follows:

"EXHIBIT A.

11/15/29

"It is hereby agreed between MacFadden Newspapers Corporation and Morris Rosen hereinafter known as the Contractor, that with the payment of One Dollar each to the other, herein acknowledged, the said Contractor take over the following routes for the distribution of the Philadelphia Daily News in the City of Philadelphia or environs: --

Routes -- 11 -- 12

"The MacFadden Newspapers Corporation hereby rents to the said Contractor two trucks, now known as trucks Nos. F44 -- C5, on agreement herein entered into by which the Contractor will purchase the said trucks on the following terms: --

"The said trucks are valued on the books of the Company, with spare tires and other equipment at Seven Hundred &amp Eighty-three Dollars and nineteen cents ($ 783.19), which price shall be paid by the contractor over a period of 27 weeks, with interest at six per cent per year, payable each week on the balance standing as unpaid. When and as the said trucks are fully paid for the MacFadden Newspapers Corporation agrees to turn clear title to the same over to the Contractor.

"The Contractor herein agrees to operate the trucks, paying salaries for chauffeurs when necessary, repairs, gasoline and such other supplies as may be required to keep the trucks in first class operating condition over the routes and for the required, special or extra editions of the Philadelphia Daily News, for which he shall be paid Seventy-five Dollars per week for the first truck and Sixty-five Dollars for each additional truck he operates under this contract, the said payment to be made weekly, not later than Wednesday of the week following for each week's service.

"The MacFadden Newspapers Corporation will deduct from said payment each week the weekly insurance premium for fire, theft and collision insurance. The Corporation also shall deduct from said payment any and all shortage in payment for papers for the week previous, the agreed payment on the purchase of the truck, or trucks, the other sums owed the MacFadden Newspapers Corporation by said Contractor. The said Contractor also shall bear the expense of bonding himself and employees under his immediate jurisdiction to the number of cars operated.

"The MacFadden Newspapers Corporation further agrees to pay at the end of one year of this contract for each car operated under this contract for the entire year a bonus of fifty-two dollars.

"The Contractor may abrogate this contract on two weeks notice, forfeiting moneys paid under the purchase agreement of this contract. The contract may be terminated by the MacFadden Newspapers Corporation at any time by the payment to the Contractor of fifty per cent of the money paid under the purchase agreement in this contract, the remaining fifty per cent to be considered as just compensation for the depreciation of the property while being operated by the said Contractor.

"It is hereby agreed that if the Contractor defaults in any payments under this contract, insofar as they concern the payments on purchase of the truck, or trucks, insurance on same, or garage rent, the trucks shall be considered the property of the MacFadden Newspapers Corporation.

"In addition to all payments provided heretofore the Contractor shall receive a bonus of five per cent on all increased sales in the above mentioned districts, made by him or his employees' efforts over and above the average weekly sale in the districts, otherwise known as routes, during the four weeks of September, 1929. The bonus to be paid weekly by crediting same against the purchase price of the equipment herein mentioned, or other bills held by the MacFadden Newspapers Corporation against the Contractor, other than for papers distributed or assigned to the said Contractor.

"No truck shall be purchased or operated by the Contractor the type and make of which is not approved by the MacFadden Newspapers Corporation.

"The MacFadden Newspapers Corporation shall continue on its payroll corner boys, branch boys, etc., to the number now in its employ in the districts above outlined, all additional boys added from time to time to be paid by said Contractor.

"This contract effective 11/25/29.

"Witness:

Morris Rosen,

Harry Wachter

Contractor

Lee Ellmaker, Vice President,

MacFadden Newspapers

Corporation."

Verdict for Roland Tyler in the sum of $ 300 and for Burnett Tyler in the sum of $ 55 and judgments entered thereon. Defendant appealed.

Error assigned, among others, was refusal of defendant's motion for judgment non obstante veredicto.

Reversed.

Thomas Raeburn White, and with him Wayland H. Elsbree of White, Schnader, Maris and Clapp, for appellant. Cited: Connor v. Pennsylvania Railroad Co., 24 Pa.Super. 241; McColligan v. Pennsylvania Railroad Co., 214 Pa. 229.

Lynn L. Detweiler of Detweiler and Detweiler, and with him Matthew K. Stevens, for appellee.

Before Trexler, P. J., Keller, Gawthrop, Cunningham, Baldrige, Stadtfeld and Parker, JJ.

OPINION

Keller, J.

This was an action by a ten year old plaintiff and his mother to recover the damages respectively sustained by them because of injuries to the minor, received while riding on the defendant's truck, due to the negligent operation of the truck by defendant's driver.

The negligence of the driver is not disputed on this appeal; although nothing appears in the evidence to show any wanton or intentional injury to the boy by him. The defense was based on the proposition, specifically averred in the affidavit of defense filed, that the driver of the truck was not the agent or employee of the defendant and that the latter, in consequence, was not liable for his negligence.

The defendant, MacFadden Newspapers Corporation, is the publisher of The Philadelphia Daily News. The truck on which the boy was riding at the time of the injury had on its side the words 'Philadelphia Daily News.' This might have been sufficient to bring the case within the ruling of the Supreme Court in Holzheimer v. Lit Bros., 262 Pa. 150, 105 A. 73, and establish a rebuttable presumption that the truck was being used at the time on the defendant's business. But the plaintiffs did not rest satisfied with this. They offered in evidence the affidavit of defense, which contained the agreement under which the truck was in fact being operated, and if this establishes that the operator of the truck was an independent contractor, engaged in delivering the defendant's papers, there can be no recovery. The plaintiff may in his own case show that the truck was not being operated on the defendant's business: Hartig v. American Ice Co., 290 Pa. 21, 137 A. 867, and thus effectually rebut the presumption above referred to.

The agreement contained in the affidavit of defense and offered in evidence was between the defendant and one Morris Rosen. The driver of the truck was Harry Rosen, an employee of Morris Rosen. The court below was under the impression that Morris Rosen was driving the car at the time of the accident. He was not.

The agreement [printed in the reporter's statement] provided for two distinct things: (1) The defendant 'rented' to Morris Rosen two trucks belonging to it, valued at $ 783.19, which the latter agreed to purchase by paying the agreed price in weekly installments over a period of twenty-seven weeks. (2) Rosen, the contractor, agreed to operate the trucks, paying chauffeur's salaries, gasoline, repairs and such other supplies as might be required to keep them in first-class operating condition, over the routes and for the delivery of the required [regular?] special and extra editions of the Philadelphia Daily News, for which the defendant was to pay Rosen $ 75 per week for the first truck and $ 65 per week for each additional truck.

We think the first matter covered by the agreement is unimportant here. It makes no difference for our purposes whether the trucks were leased by the defendant to Morris Rosen, or conditionally sold to him by defendant, or whether they had been procured by Rosen in some other way: Luckie v. Diamond Coal Co., 183 P. 178 (Cal.). The important matter is whether they were being operated by Morris Rosen as the agent of the defendant and on its behalf, or on his own behalf as an independent contractor, for the delivery of defendant's papers. If the latter, then the fact that the delivery was beneficial to the defendant would not charge it with liability for the negligence of those making such delivery. For example, newspapers are sent by common carriers to many suburban towns and nearby cities. Such delivery is for the benefit of the newspaper in that it is the means of putting the paper into the hands of its subscribers; but no one would think of holding that the negligence of the common carrier in the delivery of the papers was chargeable to the newspaper publisher. The result is no different, if, instead of delivering by common carrier, the delivery is made by private carrier, provided the carrier is acting on his own behalf and not as the agent or representative of the newspaper. The incidental...