The opinion of the court was delivered by: GOURLEY
This proceeding arises out of an automobile accident which occurred on the Pennsylvania Turnpike. The Honorable William Alvah Stewart, my former associate, now deceased, administered the cases with jury trial and verdicts were returned in favor of each of the plaintiffs.
On the basis of Rule 63 of the Federal Rules of Civil Procedure, 28 U.S.C., I am satisfied that the record speaks with sufficient clarity and completeness for me to dispose of the matter which exists for adjudication, and that no necessity exists to hear the case de novo.
The instant motion is for a new trial and/or judgment notwithstanding the verdict.
It appears the members of the Lashbrook family, consisting of the Reverend John Lashbrook, his wife, and their three minor children, were involved in an accident with a tractor truck owned and operated by one named Kuty but leased to Kennedy Motor Lines, Inc. In all of the actions of the Lashbrooks and their three minor children against Kuty and Kennedy Motor Lines, Inc., John W. Lashbrook was joined as a third party defendant.
Verdicts were returned in favor of each of the plaintiffs against Kuty and Kennedy. Verdict was returned in favor of Lashbrook, third party defendant, and against Kuty and Kennedy.
Motion for Judgment N.O.V.
Motion for judgment notwithstanding the verdict will, therefore, be refused.
As relates to motion for new trial, the crucial question for determination is whether the trial court erred in charging the jury that as a matter of law Kennedy Motor Lines, Inc. remained liable for the negligence of Kuty up to and including the time of the happening of the accident.
Defendant Kennedy Motor Lines, Inc. was the holder of various franchises granted by the Interstate Commerce Commission. Having accepted a shipment to be delivered under one of these franchises, Defendant Kennedy Motor Lines, Inc., entered into a 'trip lease' with Defendant Kuty under the terms of which he undertook to use his tractor and trailer to transport the shipment consisting of consigned furniture to several points in and about Pittsburgh, Pennsylvania.
Kuty had completed the deliveries of the merchandise to the consignees and had in his possession receipted invoices certifying thereto. The day after delivery, Kuty commenced his return trip to New York City and arrived at a point seventy miles East of Pittsburgh on the Pennsylvania Turnpike at a service station or stop known as 'Somerset.' While there, he met his brother who had experienced difficulty with his motor vehicle and after conversation with him agreed to return to Pittsburgh to secure mechanical parts for his brother's vehicle. Kuty disengaged his tractor vehicle from the trailer, went to Pittsburgh on behalf of his brother, and when a point was reached at or near the service station at Somerset, the accident occurred.
On the basis of these facts, the trial court charged the jury that as a matter of law at the time of the collision Kuty was acting within the scope of his employment with Kennedy and was, therefore, responsible for any negligence on the part of Kuty which contributed to the accident.
The Court seemed to base his conclusions as to his interpretation of the law on the thesis that Kennedy had in his possession at the time of the accident the bills of lading or receipted invoices for the goods delivered although it was ...