The opinion of the court was delivered by: MARSH
This is an action under the Pennsylvania Wrongful Death and Survival Acts
by the administratrix of the estate of Michael Deskevich, deceased, whose death on May 20, 1955 was allegedly caused by the negligence of the defendants.
The action was tried to the court without a jury. At the close of the plaintiff's case, upon motion of Bethlehem Mines Corporation under Rule 41(b), Fed.Rules Civ.Proc. 28 U.S.C.A., the court granted an involuntary dismissal of the action as to it, but declined a similar motion of the defendant Merlo, and directed him to proceed with his defense.
1. The plaintiff, a citizen of the State of New York, is the duly appointed administratrix of the estate of Michael Deskevich, deceased.
2. The defendant, Bethlehem Mines Corporation, is a corporation organized under the laws of the State of Delaware, and at the time of the accident complained of was lawfully engaged in business in the Western District of Pennsylvania.
3. The defendant, Charles Merlo, an individual, is a citizen of the Commonwealth of Pennsylvania and resides in the Western District of Pennsylvania.
4. The matter in controversy exceeds, exclusive of interest and costs, the sum of $ 3,000.
5. At the time of the accident complained of, Michael Deskevich (hereinafter called the decedent) was an employee of the defendant, Bethlehem Mines Corporation (hereinafter called Bethlehem), but was not an employee of the defendant, Charles Merlo.
6. At the time of the accident, Robert Carney was an employee of Merlo, and was acting within the lawful course and scope of his employment as such.
7. Prior to the accident, the decedent was in the habit of entering onto premises leased by Merlo from Bethlehem and engaging in conversation with Carney while the latter was performing the duties of his employment.
8. The defendant Merlo had actual knowledge of the deceased's habitual entry onto his leased premises but never prohibited or attempted to prevent the said entries.
9. The defendant Merlo and his servant, Carney, tacitly consented to the deceased's entry ...