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November 27, 1957

Jackson D. MAGENAU, Administrator of the Estate of Norman Ormsbee, Jr., Deceased,

The opinion of the court was delivered by: WILLSON

This diversity case was tried to a jury. Norman Ormsbee, Jr., was found dead about 11:20 P.M. on March 20, 1956 at the bottom of a winding S-curve near a wrecked tractor-trailer owned by Daniel Fidler and leased to defendant Aetna Freight Lines, Inc., and operated by it under its interstate commerce commission motor carrier certificate. So far as the evidence in this case shows, decedent was last seen alive as he entered the cab of the tractor between five and six P.M. of the same afternoon.

 The jury returned a verdict for the plaintiff as administrator of decedent's estate in the sum of $ 76,400. Defendant has motions pending for judgment notwithstanding the verdict and for a new trial.

 Whether decedent's status on entering the cab of the tractor was that of an invitee or an employee of defendant or a trespasser, was a contested point. This issue was raised in the pleadings, discussed at pretrial and controverted throughout the trial.

 This case was called for pretrial on May 22, 1957 at Erie, and during the pretrial, counsel for the defendant called the court's attention to a motion for summary judgment which he had filed on April 4, 1957. As appears in the pretrial record, Gerald J. Weber, Esq., counsel for defendant, indicated to the court that the motion had been filed after the May, 1957 argument list had been published and he understood it would be considered at pretrial. It was considered at that time. The basis for the motion was that 'the pleadings and depositions failed to allege and show that there was any relationship between decedent and defendant upon which defendant could be held liable for damages.' The point was made that decedent was a trespasser and that at most, defendant owed the duty to refrain from wanton or wilful misconduct toward the decedent.

 It is noticed at this point that the complaint averred that Ormsbee was riding as a guest passenger and invitee, having been offered a ride by the driver of the vehicle. It was mentioned at the pretrial that the evidence which plaintiff expected to produce would show first, that because of the alleged defective condition of the vehicle's brakes the driver was faced with an emergency which authorized him under the law of Pennsylvania to employ someone as an assistant and second, the proposition was discussed and plaintiff's contention was stated that assuming that plaintiff was a trespasser, nevertheless, this defendant is liable for his death if it engaged in reckless and wanton misconduct toward him under the circumstances. After considerable discussion on the two features mentioned, the court indicated that the pretrial should proceed, as the motion for summary judgment would be denied.

 Thus it appears from the outset of this case, that defendant's position has been that decedent Ormsbee was a trespasser in the vehicle. Defendant has contended from the first that it did not hire decedent and that none of its employees had authority to engage decedent as a helper or assistant. In submitting the case to the jury, a special verdict was directed and in it the jury answered four interrogatories. The defendant's present contention is that by answering the first interrogatory in the affirmative, the jury has determined that Ormsbee, the decedent, was in the employ of the defendant and plaintiff therefore cannot recover in this case, but if plaintiff has any remedy, it is under the Workmen's Compensation Act of Pennsylvania, 77 P.S.Pa. ยง 1 et seq.

 This court does not agree with defendant's contention that the affirmative answer of the jury to the first interrogatory establishes that decedent was hired as an employee or became a statutory employee of defendant.

 The interrogatory reads:

 '1. Under the evidence in this case, do you find that an unforeseen contingency arose which made it reasonably necessary for the protection of the defendant's interests that the driver, Charles Schroyer, engage the decedent, Norman Ormsbee, Jr., to accompany him for the remainder of the trip? 'Answer 'Yes' or 'No' Answer: Yes'

 The defendant concedes this point and did so at pretrial. Daniel Fidler, owner of the equipment, hired the driver Schroyer, and he had been in his employ for but two weeks before the accident. Although at pretrial the status of decedent's relationship with defendant was raised and discussed, the interrogatory to the jury was not so phrased as to require the jury to determine whether decedent was an employee of Aetna. Fidler leased the equipment and his driver Schroyer to the defendant. The tractor-trailer outfit left Syracuse, New York on March 13, 1956. It was loaded with 35,912 pounds of steel consigned to the Crucible Steel Company at Midland, Pennsylvania. The route was via Syracuse to Buffalo. Schroyer left Buffalo on the morning of March 20, 1956 on a route which took him to Erie and southwardly from Erie on Route 19 to Waterford, Pennsylvania, in this district. Schroyer stopped at Jones' Tavern. While there he complained of tractor trouble to Mr. Jones and specifically referred to trouble that he had had with his brakes. Schroyer also complained of brake trouble to one Herbert Brown in the tavern and offered him $ 25 if Brown would ride along with Schroyer to his destination. Brown refused. Thereafter Schroyer talked to Norman Ormsbee, Jr., plaintiff's decedent. According to Jones, the proprietor, who heard the talk, Schroyer promised to pay Ormsbee $ 25 if decedent would ride along with him. Both left the tavern and were seen entering the cab. Mr. Schroyer got into the driver's seat and the vehicle was seen to start toward the south on Route 19.

 At approximately 11:20 P.M., State Police officers were called to investigate a fatal accident on Route 68 near Rochester, Pennsylvania. At the scene of the accident, the police identified the two bodies, one as the driver of the truck, Schroyer, and the other as plaintiff's decedent, Norman Ormsbee, Jr.

 Thus, based on the evidence, Interrogatory No. 1 was simply to secure a finding from the jury as to the reasonable necessity of Schroyer engaging decedent to accompany him on the remainder of the trip in protection of defendant's interests.

 This court holds, based on the jury's findings, that the law of this case is that the decedent Ormsbee was not a trespasser in entering the cab of the vehicle.

 Under the facts shown in this case, the plaintiff is not barred from bringing this civil action under Pennsylvania law. See D'Allessandro v. Barfield, 348 Pa. 328, 35 A.2d 412, a decision of the Supreme Court of Pennsylvania on this point. In the D'Alessandro case, the Supreme Court had before it the issue as to whether a minor plaintiff at the time of the accident was the plaintiff's employee within Section 203 et seq. of the Workmen's Compensation Act. The minor plaintiff had been engaged by the driver of one of the defendant's vehicles used in early morning deliveries of milk. The boy had ridden on the vehicle with the knowledge of one of the owners. Nevertheless, the Pennsylvania court held that it was only when the assistant is hired to perform services upon the employer's premises that liability under the Workmen's Compensation Act applies. Recovery was permitted in a law action. That decision, together with Kissell v. Motor Age Transit Lines, supra, establishes in the case at bar the proposition of law that defendant is responsible for the negligent operation of the vehicle.

 The two decisions together establish the further proposition that defendant is liable because the vehicle was operated under its I.C.C. certificate, for any damages resulting from negligence in the maintenance of the equipment and its operation with defective brakes, if such negligence was the proximate cause of decedent's death. Liability is imposed because without the I.C.C certificate, the interstate transportation of the cargo of steel in question in this case could not have been performed legally by the defendant. Thus defendant's motions for judgment notwithstanding the ...

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