Appeal from order of Court of Common Pleas, Civil Division, of Allegheny County, July T., 1968, No. 34, in case of Donna Fay Goughenour, a minor, by her guardian, G. Foster Doak v. Bruce Campbell, Robert W. Campbell and Grace L. Campbell.
John R. Gavin, with him Edward O. Spotts, and Spotts, Gill, Gavin & Morrow, for appellant.
John F. Ploeger, with him Robert B. Truel, and Truel and Ploeger, for appellees.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Cercone, J. Montgomery and Hoffman, JJ., concur in the result.
[ 219 Pa. Super. Page 143]
Robert and Grace Campbell had entrusted their son Bruce with the custody and control of their automobile. Bruce, in turn, entrusted its custody and control to Constance Steigerwald, who was operating the vehicle at the time it went out of control, crossed the center of the highway into the lane of oncoming traffic, and struck a vehicle being operated by one Helen Bell. One of the passengers in the Campbell car driven by Constance Steigerwald was Donna Fay Goughenour, a minor, who by her guardian, instituted this suit against
[ 219 Pa. Super. Page 144]
Constance Steigerwald on the basis of her negligent operation, and against Constance's parents on the theory of agency. Also sued as defendants were Bruce Campbell and his parents Robert and Grace Campbell, plaintiff alleging that Constance Steigerwald was driving the Campbells' car at the time of the collision with their permission and as their agent.
The Steigerwald parents and the Campbells filed Answers denying agency. However, the Steigerwalds in their Answer also set forth New Matter alleging that the collision was not the result of any negligence on the part of their daughter Constance, but the result of a mechanical defect of the Campbell vehicle and that the Campbells were negligent in failing to properly maintain the vehicle and in failing to warn Constance Steigerwald of the defective nature of the automobile. No Reply was made to this New Matter, and the plaintiffs did not amend their Complaint to include the negligence which the Steigerwalds, in their New Matter, attributed to the Campbells.
The suit was consolidated for trial with that filed by Helen Bell,*fn1 the operator of the vehicle struck by Constance Steigerwald. The Bell suit was brought solely against Constance Steigerwald. Constance Steigerwald brought the Campbells on the record as additional defendants, pleading and alleging against them the very same acts of negligence concerning the mechanical defect of the Campbell car which she had charged against them in her New Matter filed in the Goughenour case.
[ 219 Pa. Super. Page 145]
The cases proceeded to trial, and in the Goughenour case the plaintiff introduced, without objection, testimony that the steering mechanism of the Campbell vehicle was defective and functioning improperly and that as a result of the defect, Constance lost control and the vehicle traveled onto the wrong side of the road striking the Bell vehicle head on. At the conclusion of this testimony, plaintiff made a motion to amend the Complaint to include the allegation that the Campbell vehicle was mechanically defective and that the Campbells were negligent in permitting such a defective vehicle to be operated by defendant Constance Steigerwald. No objection was made to the allowance of such amendment and it was granted. However, at the conclusion of plaintiff's case, the defendants Campbell moved to strike the amendment on the ground that it raised a new cause of action which was barred by the statute of limitations. The court did strike the amendment from the record, holding, in effect, that it was too late for plaintiffs to amend their Complaint to include allegations relating to the Campbells' negligence in permitting a defective vehicle to be operated. Plaintiffs offered no evidence relating to agency, and, on this state of the record, the court granted the motion of defendants Campbell for compulsory non-suit. It also entered a non-suit in favor of all the Steigerwalds.
Although the court thus did not permit the defective vehicle theory of negligence to be utilized and relied upon by the minor plaintiff, Donna Fay Goughenour, as part of her case in chief, it did allow the plaintiffs Bell to proceed against the Campbells on the defective vehicle theory of negligence (as introduced in defendants' Steigerwald Complaint against the Campbells as ...