The Court remains of opinion that the evidence and the jury's verdict, on the two-fold grounds above stated, clearly support plaintiff's verdict against defendant Tecumseh. The Court also believes that the evidence and verdict support plaintiff's recovery against defendant Marquette, unless that defendant is entitled to prevail on the ground that the evidence implicating it was submitted during presentation of the case of defendant Tecumseh, and after the close of plaintiff's case. However, we believe that it would be a technicality subversive of justice to deprive plaintiff of its verdict against Marquette upon such a ground. The proper practice, under Pennsylvania law, is to allow the other defendants to present their testimony on the question of the liability of each and all of them before the Court enters a non-suit or directs a verdict in favor of one particular defendant. Frank v. W. S. Losier & Co., 361 Pa. 272, 275, 64 A.2d 829 (1949). See also Bates v. Miller, 133 F.2d 645, 647-648 (C.C.A.2, 1943). It will be remembered that in this case both Tecumseh and Marquette are original defendants. Marquette is not a third-party defendant.
The real battle in his case is over Marquette's cross-claim for indemnity against Tecumseh, on the ground that Marquette's liability is secondary, whereas that of Tecumseh is claimed to be primary. We are not convinced that this claim is well founded.
Since the identical negligence (failure to make proper inspection) was charged against each defendant, in the light of the jury's verdict the defendants must be found to be joint or concurrent tort-feasors rather than as occupying a relationship of primary and secondary liability. There was no legal relationship between them, such as master and servant, which is ordinarily the basis for distinction of primary and secondary liability. Pittsburgh Steel Company v. Patterson-Emerson-Comstock, Inc., 404 Pa. 53, 61-62, 171 A.2d 185 (1961); Builders Supply Co. v. McCabe, 366 Pa. 322, 325-328, 77 A.2d 368, 24 A.L.R.2d 319 (1951).
Accordingly, judgment is entered on the verdict for plaintiff against both defendants, and for defendant Tecumseh on defendant's Marquette's cross-claim against Tecumseh.
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