Before McLAUGHLIN, STALEY and HASTIE, Circuit Judges.
McLAUGHLIN, Circuit Judge.
Plaintiff's decedent was killed as a result of a collision in Pennsylvania between the automobile he was operating and a tractor trailer owned by and operated for appellant. Nine months after this action had been commenced suits were filed in the state court on behalf of the passengers in the Kimmel car against plaintiff as administratrix of her deceased husband's estate and Yankee Lines. Those cases were consolidated and tried. The jury found negligence on the part of both Kimmel and Yankee Lines and awarded verdicts against both defendants. The state trial judge on motion entered judgment n.o.v. in favor of Yankee Lines and allowed the verdicts against Kimmel to stand. This suit was tried thereafter in due course and resulted in a verdict in favor of the plaintiff.
On motions for a new trial and for judgment n.o.v. appellant urged that the verdict in the federal court was against the weight of the evidence and that the state court judgment had resolved the issue of negligence making it res adjudicata.
The first point need not concern us long. There was evidence from which the jury could have concluded as it did that the Yankee Lines dricer caused the accident by his negligence and that Kimmel was not contributorily at fault. Those were matters for the jury.
Since this is a diversity case we look to Pennsylvania law for the answer to the second question, whether recovery here is barred by the state court judgments. There is no appellate opinion directly in point but a common pleas decision of that state which is quite close to the situation before us squarely holds that a verdict against two joint defendants in an action such as the state court suit above mentioned does not foreclose the negligence issue as to the defendants in a later suit between them. Chenger v. Peccan, 1953, 88 Pa.Dist. & Co. 186. That opinion, while not controlling, is entitled to some weight. National Foam System v. Urquhart, 3 Cir., 1953, 202 F.2d 659.
The common pleas decision relied on Section 82 of the Restatement of Judgments, which says:
"The rendition of a judgment in an action does not conclude parties to the action who are not adversaries under the pleadings, as to their rights inter se upon matters which they did not litigate, or have an opportunity to litigate, between themselves."
An illustration given under Comment b to this section is particularly apropos to our case:
"1. A and B are driving automobiles, which collide, C, a passenger in B's car, sues A and B. Whether the judgment is in favor of or against C as to either or both A and B, the issues as to negligence or other element of the cause of action are not res judicata in a subsequent action by A against B for damage to his car."
Appellant leans heavily on Simodejka v. Williams, 1948, 360 Pa. 332, 62 A.2d 17. In that case, however, the former suit arose under Pennsylvania's third-party practice rule. Thus instead of the parties being co-defendants in the first suit they were adversaries, i.e. third-party plaintiff and third-party defendant.*fn1 On this basis the Pennsylvania Supreme Court properly distinguished the Restatement's nonadversary rule as well as an earlier Pennsylvania case, Jordan v. Chambers, 1910, 226 Pa. 573, 75 A. 956, which had refused to apply the doctrine of res adjudicata in a subsequent suit between two co-defendants who had been successful in an ejectment action brought against them.
This is not the first time the federal courts have applied Pennsylvania law to this particular problem. In Hassenplug v. Victor Lynn Lines, 3 Cir., 1947, 163 F.2d 828, affirming, D.C.E.D.Pa.1947, 71 F.Supp. 70, the representatives of a deceased automobile passenger had recovered a judgment against decedent's driver and the owner of a truck, the latter being the second vehicle involved in the fatal collision. This court, in a per curiam affirmance, refused to apply the doctrine of res adjudicata in the subsequent suit brought by decedent's driver against the truck owner. In Greer v. Stanislau, D.C.E.D.Pa.1953, 118 F.Supp. 494, two automobiles collided on the streets of Philadelphia. A land owner brought suit for damages in the Municipal Court of Philadelphia County against the two drivers as joint tortfeasors. Greer did not contest the action and the jury returned a verdict against Greer but exonerated Stanislau. Greer then sued Stanislau in the federal district court. The latter's motion to dismiss on thr res adjudicata ground was denied. In his opinion Judge Ganey cited the Simodejka case, quoted Section 82 of the Restatement of Judgments and concluded: "We think the Pennsylvania Courts would follow this section of the Restatement." The Greer case was not appealed. See also Hornstein v. Kramer Bros. Freight Lines, 3 Cir., 1943, 133 F.2d 143.
Exactly the same problem was before the Minnesota Supreme Court in Bunge v. Yager, 1952, 236 Minn. 245, 52 N.W.2d 446, 451. What that court said about its contribution and cross-claim procedure could also be said by us about the law of Pennsylvania:
"Our statutes, as well as our new rules, simply provide a method whereby the rights and liabilities of co-parties may be litigated in an action in which they are aligned on the same side of the litigation, thereby preventing a multiplicity of suits. But where action is not taken to bring co-parties into an adversary relationship, their rights and liabilities as against each other are not determined, nor is the determination of their liability to a third party a bar to a subsequent action ...