Appeal, No. 14, Oct. T., 1954, from judgment of Court of Common Pleas No. 3 of Philadelphia County, Dec. T., 1950, No. 1634, in case of Edward B. McMaster, a minor, by his father, Edward E. McMaster et ux. v. Frank Reale et al., trading as Reale Construction Company. Judgment affirmed.
Irvin J. Kopf, Philadelphia, for appellants.
Ralph S. Croskey, with him Morton B. Weinstein, Philadelphia, for appellees.
Before Rhodes, P.j., Ross, Gunther, Wright, Woodside and Ervin, JJ. (hirt, J., absent).
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This is an action in trespass by a minor through his parents against four defendants individually and as members of a partnership. The jury rendered a verdict in favor of the plaintiffs against Tripoli A. Reale and in favor of the other two defendants (the fourth defendant having died before trial, the action as to him was abated by agreement of counsel). The court
[ 177 Pa. Super. Page 431]
below denied plaintiff's motions for a new trial and for judgment n.o.v. and plaintiffs have appealed.
The testimony disclosed that the partnership, Reale Construction Company, was engaged in installing sewer pipes along public streets in Philadelphia. The minor plaintiff was found near an open sewer ditch by Tripoli Reale, the foreman for the partnership, who told the minor to leave and then kicked and slapped him. The issue of tortious conduct having been determined by the jury in favor of plaintiffs, the only question is whether the other partners are bound by the acts of their foreman.
Plaintiffs contended that Tripoli Reale was a member of the partnership because he had joined in a fictitious name application. The testimony of the defendants revealed that he was never made a partner, but was reported and paid as an employe of the partnership. However, it is undisputed that Tripoli Reale was the foreman in charge of the work at the time the injury was inflicted, and plaintiffs now contend that the evidence clearly indicates that he was acting within the scope of his employment so that the partners are bound by his tort as a matter of law.
Tripoli Reale testified that the minor plaintiff had been previously damaging the sewer property; that he caught the plaintiff in the act, told him to get out, chased him and kicked him. On the other hand, the minor testified that he had never been near the particular ditch before, that he was only looking into the ditch when the defendant told him to go away; that as he walked away he was kicked and then struck in the face. An issue of fact was thereby raised and, by finding for plaintiffs, the jury determined that Tripoli's actions ...