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POTANKO v. SEARS (11/15/51)

November 15, 1951

POTANKO
v.
SEARS, ROEBUCK & COMPANY, APPELLANT



Appeals, Nos. 112 to 115, inclusive, March T., 1951, from order of Court of Common Pleas of Allegheny County, April T., 1948, No. 2193, in case of John Potanko, a minor, by his guardian, Edward C. Potanko and Edward C. Potanko et ux., v. Sears, Roebuck & Company, and Martha K. Harrison and George D. Shields, trading as Harrison-Shields. Order modified; reargument refused December 8, 1951.

COUNSEL

Robert B. Wolf, with him Leon Solis-Cohen, Jr., Alfred L. Wolf, Abraham L. Freedman, Donald B. Hirsch, Wolf, Block, Schorr & Solis-Cohen and Sachs & Caplan, for original defendant, appellant.

James J. burns, Jr., for additional defendants, appellants.

Emanuel Goldberg, for plaintiffs, appellees.

Before Drew, C.j., Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.

Author: Ladner

[ 368 Pa. Page 584]

OPINION BY MR. JUSTICE LADNER

These appeals arise out of an action brought by John Potanko, a minor, by his father as guardian and by his parents in their own right, against the defendant, Sears, Roebuck & Company, to recover damages for injuries suffered by the minor plaintiff in his own home when a radiator, not yet installed, fell on him. The complaint charged negligence on the part of Sears, Roebuck & Company from whom the radiator was purchased. Sears brought in as additional defendants, Martha K. Harrison and George D. Shields, trading as Harrison-Shields, the carriers who delivered the radiator.

The jury returned a verdict for the adult plaintiffs and for the minor plaintiff against Sears and also a verdict in favor of Harrison-Shields. The learned court below refused Sears' motion for judgment n.o.v. but granted the motion of the plaintiffs for a new trial as against both original and additional defendants. From this action of the court below both Sears, original defendant, and Harrison-Shields, additional defendants, took the appeals now before us.

[ 368 Pa. Page 585]

The circumstances, as they appear from the undisputed testimony, are as follows: Adult plaintiffs in May, 1947, purchased from Sears by written contract materials for a heating system. the contract provided that a separate licensed contractor would install said materials and that Sears would not install the heating system but that by acceptance of the proposal the purchaser agreed to employ the named contractor.*fn1 The contract did, however, contain but one price which included the materials, delivery of the materials and their installation.

On August 14, 1947, eight radiators were delivered by the employes of Harrison-Shields to the home of the adult plaintiffs. Each radiator was placed by the driver with his helpers in the rooms that were designated on tags attached by Sears to the radiators. The radiator which caused the injury was placed in an upright position in front of the window of plaintiffs' dining ...


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