Inc. v. Kendall, 189 Pa. Super. 126, 149 A. 2d 169 (1958).
Since Johnson was negligent and Johnson's negligence was the proximate cause of the loss of the plane, the next question concerns Dixon Company's liability for this negligence. Dixon Company was in the business of delivering airplanes. Sometimes the president of the defendant company made the delivery himself, sometimes the company hired others to do so. However, the company, not the owners of the planes to be delivered, hired these other pilots. The defendant company was paid fees for the delivery of planes, and its president negotiated pilots' fees with the pilots. The defendant company did not arrange for these pilots to work for and be paid by the owners of the planes, as a broker might. It appears that Johnson, who had delivered several planes under a similar arrangement with Dixon Company, was employed sporadically by Dixon Company. Because Johnson was Dixon Company's agent, Piper delivered the plane to his custody for redelivery to the owner. This type of delivery arrangement is a mutual benefit bailment, and the bailee, Dixon Company, is liable for the loss of the bailed article caused by the negligence of its employee and agent. Hearst Magazines v. Cuneo Eastern Press, Inc. of Pa., 293 F. Supp. 824, 829 (D.C. Pa. 1968); Metzger v. Downtown Garage Corp., 169 Pa. Super. 384, 82 A.2d 507 (1951); Jackson v. Fort Pitt Hotel, 162 Pa. Super. 271, 57 A.2d 696 (1948); The Comet, 66 F. Supp. 231 (D.C. Pa. 1946). Even if it were held that Johnson was a sub-contractor of Dixon, not an employee, Dixon Company would still be liable for its failure to perform its implied bailment contract with Aviation Associates because Dixon entrusted the plane to Johnson. See The Comet, 66 F. Supp. 231 (D.C. Pa. 1946).
Since James and Joyce Wolyneic are also defendants in this action, it is necessary to decide whether they are also liable for the loss of the plane. It is my view that they are not liable because it does not appear that any effect which the Wolyneics had on the planning and execution of the flight was a proximate cause of the loss. The only change in plans which was shown was a change in the day of the flight by one day. There is no evidence that this change in plan was a proximate cause of the loss. Although James Wolyneic did fly the plane for a short time, Johnson was supervising during this period. At all times he, not Wolyneic, was in control. Not having done anything to override or decrease this control, Wolyneic cannot be charged with joint responsibility for the destruction of the plane. Even if it were assumed that James Wolyneic took some independent action during his brief period at the controls, there was no convincing proof that the loss of the plane was due to the course the plane took while Wolyneic had his hands on the controls.
The final issue in this action is the extent of the damages to which plaintiff is entitled. Clearly, plaintiff is due at least the fair market value of the plane on the date of its loss. The more difficult question is whether or not plaintiff may recover interest on this fair market value from the date of the loss. In a diversity suit, a federal Court should follow the law of the forum state on this question. See Herd and Co. v. Krawill Machine Corp., 256 F.2d 946 (4th Cir. 1958), affirmed 359 U.S. 297, 79 S. Ct. 766, 3 L. Ed. 2d 820. The law in Pennsylvania on this subject is not clear. Interest may be denied in bailment actions sounding in tort where the damages are unliquidated. Girard Trust Corn Exchange Bank v. Brink's, Inc., 422 Pa. 48, 220 A. 2d 827 (1966). However, it also appears that if the damages can be measured by fair market value or other definite standards, plaintiff may be awarded interest as a compensation for delay in payment. Marrazzo v. Scranton Nehi Bottling Co., Inc., 438 Pa. 72, 263 A. 2d 336 (1970); Murray Hill Estates, Inc. v. Bastin et al., 442 Pa. 405, 276 A.2d 542 (1971). Compensation for delay is of an equitable nature and depends on all the circumstances of the case. Compensation would not be awarded had plaintiff made an excessive and unconscionable demand for payment. The Pennsylvania Supreme Court has not squarely faced the issue of whether to award interest where, as here, defendant in good faith disputes plaintiff's claim. It is my view that because the Pennsylvania Supreme Court awards interest on liquidated damages even where a case sounds in tort, it would also do so where the loss is capable of definite valuation and there are no equities against the plaintiff. In this fashion, plaintiff will be as justly compensated as is practicable. Hence, in this action, Aviation Associates will be awarded interest at the legal rate on the fair market value of the plane from the date of its loss.
IV. Conclusions of Law
1. This court has jurisdiction under 28 U.S.C. § 1332.
2. The agreement entered into between plaintiff and defendant Dixon Company was an oral mutual benefit bailment contract.
3. Harry J. Johnson was negligent in his planning and execution of the flight.
4. Johnson's negligence was a proximate cause of the loss of the plane.
5. The Dixon Company was a bailee of the plane.
6. When delivering this plane, Johnson was an agent for the Dixon Company.
7. The Dixon Company is liable for the loss of the Piper plane.
8. Any influence which James and Joyce Wolyneic had on the flight in question was not a proximate cause of the loss of the plane.
9. Plaintiff is entitled to recover from the defendant The Dixon Company, Inc. $18,389.84, the fair market value of the plane on the date of its loss.
10. Plaintiff is also entitled to recover from the Defendant The Dixon Company, Inc. $5,192.06 interest from the date of the loss at the legal rate of 6%.
11. Plaintiff is not entitled to recover from either James Wolyneic or Joyce Wolyneic.
An appropriate order will be entered accordingly.
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