There can be little doubt that the substituted service on Steinman pursuant to the Pennsylvania Nonresident Motorist Act was lawful. Giffin v. Ensign, 3 Cir., 1956, 234 F.2d 307; Pasternack v. Dalo, D.C.W.D.Pa.1955, 17 F.R.D. 420. Since it has been established that the word 'operator' as used in said Act is not limited to the nonresident driver, but includes the driver's nonresident master, Eckman v. Baker, 3 Cir., 1955, 224 F.2d 954, 957, and includes a nonresident member of a partnership where a motor vehicle is operated by another on partnership business, Rigutto v. Italian Terrazzo Mosaic Co., D.C.W.D.Pa.1950, 93 F.Supp. 124, 127, a fortiori it would include a nonresident member of a joint venture where a motor vehicle is operated by another on the business of the joint venture. Thus, we hold that the court has jurisdiction of the person of Steinman.
As to defendant Wilson's claim for relief, it does not appear for a certainty that Wilson would not be entitled to relief under the facts averred or which might be proved in support of its fourth-party complaint. Cf. Frederick Hart & Co., Inc. v. Recordgraph Corp., 3 Cir., 1948, 169 F.2d 580. Resembling the law of partnership, all the members of a joint adventure may be liable jointly and severally for a tort committed by one of them in conducting the business of the joint venture. 48 C.J.S. Joint Adventures §§ 13, 14; 30 Am.Jur., Joint Adventures, § 56. Therefore, if in the prosecution of the business of the joint venture, Hitzeman was operating a tractor-trailer as the agent of the defendant Wilson, as alleged in the complaint, and negligently injured the plaintiff, Wilson would be entitled to indemnity from either or both Hitzeman and Steinman, the alleged members of the joint venture.
Since jurisdiction of the person of Steinman appears, and since Steinman has failed to support its motion to dismiss by evidence which would to a legal certainty require a conclusion by the court that Steinman and Hitzeman were not joint venturers, final disposition of the matter should be reserved to the trial and the preliminary motion denied. We think this to be especially so in the instant case where the jurisdictional question of joint venture is closely tied to the merits, which fact, if disputed, may be tried to a jury if Steinman so desires. See: Wade v. Rogala, 3 Cir., 1959, 270 F.2d 280, 285; Boulay v. Pontikes, D.C.W.D.Mo.1950, 93 F.Supp. 826, 829.
Wilson also alleged in his amended complaint that if it be found liable to plaintiff 'then and in that event said O. Steinman, Inc. and Hitzeman are liable over to this defendant.'
Although not in the form recommended by Form 22, Fed.R.Civ.P., we think the allegation is in substantial compliance with the requirement of Rule 14(a), Fed.R.Civ.P.
Wilson filed a second amended complaint and served it upon Steinman. Neither leave of court nor the consent of Steinman was obtained as required by Rule 15(a), Fed.R.Civ.P. However, the position we have taken with respect to the first amended complaint, makes it unnecessary to consider Wilson's second amendment.
For the foregoing reasons, we are of the opinion that the court has jurisdiction over Steinman; that the first amended fourth-party complaint substantially conforms to the Federal Rules of Civil Procedure, and that it states a claim upon which relief can be granted. The order permitting joinder of O. Steinman, Inc. as fourth-party defendant may stand as authorized and approved by the assigned judge nunc pro tunc.
An appropriate order will be entered.