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ZIELINSKI v. PHILADELPHIA PIERS

March 21, 1956

Frank ZIELINSKI
v.
PHILADELPHIA PIERS, Inc.



The opinion of the court was delivered by: DUSEN

Plaintiff requests a ruling that, for the purposes of this case, the motordriven fork lift operated by Sandy Johnson on February 9, 1953, was owned by defendant and that Sandy Johnson was its agent acting in the course of his employment on that date. The following facts are established by the pleadings, interrogatories, depositions and uncontradicted portions of affidavits:

1. Plaintiff filed his complaint on April 28, 1953, for personal injuries received on February 9, 1953, while working on Pier 96, Philadelphia, for J. A. McCarthy, as a result of a collision of two motor-driven fork lifts.

 2. Paragraph 5 of this complaint stated that 'a motor-driven vehicle known as a fork lift or chisel, owned, operated and controlled by the defendant, its agents, servants and employees, was so negligently and carelessly managed * * * that the same * * * did come into contact with the plaintiff causing him to sustain the injuries more fully hereinafter set forth.'

 3. The 'First Defense' of the Answer stated 'Defendant * * * (c) denies the averments of paragraph 5 * * *.'

 4. The motor-driven vehicle known as a fork lift or chisel, which collided with the McCarthy fork lift on which plaintiff was riding, had on it the initials 'P.P.I.'

 5. On February 10, 1953, Carload Contractors, Inc. made a report of this accident to its insurance company, whose policy No. CL 3964 insured Carload Contractors, Inc. against potential liability for the negligence of its employees contributing to a collision of the type described in paragraph 2 above.

 6. By letter of April 29, 1953, the complaint served on defendant was forwarded to the above-mentioned insurance company. This letter read as follows:

 'Gentlemen:

 'As per telephone conversation today with your office, we attach hereto 'Complaint in Trespass' as brought against Philadelphia Piers, Inc. by one Frank Zielinski for supposed injuries sustained by him on February 9, 1953.

 'We find that a fork lift truck operated by an employee of Carload Contractors, Inc. also insured by yourselves was involved in an accident with another chisel truck, which, was alleged, did cause injury to Frank Zielinski, and same was reported to you by Carload Contractors, Inc. at the time, and you assigned Claim Number OL 0153-94 to this claim.

 'Should not this Complaint in Trespass be issued against Carload Contractors, Inc. and not Philadelphia Piers, Inc.?

 'We forward for your handling.'

 7. Interrogatories 1 to 5 and the answers thereto, *fn1" which were sworn to by defendant's General Manager on June 12, 1953, and filed on June 22, 1953, read as follows:

 '1. State whether you have received any information of an injury sustained by the plaintiff on February 9, 1953, South Wharves. If so, state when and from whom you first received notice of such injury. A. We were first notified of this accident on or about February 9, 1953 by Thomas Wilson.

 '2. State whether you caused an investigation to be made of the circumstances of said injury and if so, state who made such investigation and when it was made. A. We made a very brief investigation on February 9, 1953 and turned the ...


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