Appeals, Nos. 197 and 208, Jan. T., 1949, from judgment of Court of Common Pleas No. 5 of Philadelphia County, Dec. T., 1947, No. 2500, in case of Mary Frances Donnelly, Admrx., Estate of Hugh E. Donnelly, Deceased, v. Fred Whittaker Company et al. Judgment against Fred Whittaker Company reversed; judgment against Tidewater Field Warehouses, Inc. affirmed.
Howard R. Detweiler, with him Frank R. Ambler, for defendant, Tidewater Field Warehouses, Inc., appellant.
Walter B. Gibbons, for defendant, Fred Whittaker Company, appellant.
James F. Masterson, with him Joseph A. Palmer, for appellee.
Before Maxey, C.j., Drew, Linn, Stern, Stearne and Jones, JJ.
OPINION BY Mr. Justice DREW
Hugh E. Donnelly, a United States customs inspector, was killed on May 1, 1947, when a 700 pound bale of wool was pushed from the top of a stack of bales and fell on him. At the time he was engaged in weighing and testing wool owned by Fred Whittaker Company (hereinafter called Whittaker) in a warehouse operated by Tidewater Field Warehouses, Inc. (hereinafter called Tidewater). To recover damages suffered as a result of Donnelly's death, this suit in trespass against Whittaker was brought by Mary Frances Donnelly, decedent's widow, as administratrix of his estate, on behalf of herself and her two minor children*fn1
and also on behalf of Donnelly's estate.*fn2 Whittaker brought Tidewater on the record as an additional defendant. The jury returned verdicts against both defendants in the amount of $32,078 in the wrongful death action and $10,400 in the survival action. After motions for judgments n.o.v. and new trial were overruled, judgment was entered on the verdicts and defendants appealed.
Whittaker is engaged in the business of importing and processing raw wool. In order to avoid the necessity of making immediate payment of the import duty, the wool is stored in bonded warehouses subject to the joint control of the warehouseman and the U.S. customs officials. The duty is then paid as the wool is removed. Whittaker, needing a bonded warehouse in the City of Philadelphia and being unable to operate one for its own wool, leased to Tidewater the warehouse building here involved and at the same time entered into a warehouse agreement with Tidewater. By the terms of the agreement, Tidewater agreed to use the warehouse exclusively for the storage of Whittaker's wool and Whittaker agreed to pay certain storage charges. The agreement further provided that Whittaker would furnish all labor necessary for the supervision, storage, handling, removal, weighing, packing, delivery and protection of the wool and that "All such labor, when performing said services on the warehouse premises, is to be subject to the exclusive control and supervision of... [Tidewater]."
On May 1, 1947, Donnelly went to the warehouse to weigh and sample wool stored there by Whittaker. One William Hartley, who was in the general employ of Whittaker and acted as assistant storekeeper for ...