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ALLEN ET VIR v. LESHNER (06/14/73)

decided: June 14, 1973.

ALLEN ET VIR, APPELLANTS,
v.
LESHNER



Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, Dec. T., 1966, No. 3344, in case of Edna Allen and James Allen v. Irving A. Leshner and Sidney A. Leshner.

COUNSEL

William Morrow, with him Irwin Rosenzweig, and Karabel, Rosenzweig, Abowitz & Morrow, for appellants.

Edward R. Paul, with him Joseph G. Manta, and LaBrum and Doak, for appellees.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Jacobs, J. Wright, P. J., would affirm on the opinion of Judge Chudoff.

Author: Jacobs

[ 224 Pa. Super. Page 328]

At issue in this case is the vicarious liability in tort of an employer of persons not covered by The Pennsylvania Workmen's Compensation Act*fn1 for injury and property damage suffered by an employee due to the negligence of another employee. Specifically, the question is whether an employer of a live-in nursing companion is free, as a matter of law under the fellow servant rule, from liability for loss incurred by the companion in an attempt to rescue goods of the employer on his premises endangered by the negligence of the companion's vacation substitute, at a time two hours prior to the scheduled end of the companion's vacation and the termination of the substitute's employment.

The lower court resolved the question in favor of the employer-defendants in this case, and granted a compulsory non-suit against the injured companion and her husband, who are plaintiffs, under the fellow servant rule. This rule provides that a master is not to be held liable for an injury to a servant caused solely by the negligence of a fellow servant. See Ryan v. Cumberland Valley R.R., 23 Pa. 384 (1854). Following the court's refusal to remove the non-suit and its entry of judgment for the defendants, the plaintiffs appealed. We reverse.*fn2

On appeal from a refusal to take off a compulsory non-suit, the plaintiff must be given the benefit of all

[ 224 Pa. Super. Page 329]

    favorable testimony; every reasonable inference of fact arising therefrom and all conflicts therein must be resolved in favor of the plaintiff. Miller v. McMinn's Indus., Inc., 410 Pa. 234, 188 A.2d 738 (1963); Robinson v. Raab, 216 Pa. Superior Ct. 397, 268 A.2d 225 (1970). Viewed in this manner, the facts are as follows: Plaintiff Edna Allen was employed by the defendants in 1964 as a live-in nursing companion for their bedridden mother. In August of 1965, Mrs. Allen was given a week's vacation and the defendants hired a replacement for the duration. On August 17, 1965, Mrs. Allen returned to the defendants' home at 11:00 a.m., two hours prior to the scheduled end of her vacation. She greeted her replacement, who was ironing in the basement, went upstairs to visit the defendants' mother for a moment, and then went downstairs for some drinking water. She was returning with water for the mother when she smelled smoke. Mrs. Allen testified: ". . . I saw smoke coming from the basement. . . . I ran down. . . . It was full of smoke and it was hard to tell what was what. I saw the smoke and grabbed the clothes off the line and threw them in the wash tubs there. In the mean time I saw this glob of fire there and I said oh, the iron and I went to pull the socket." In reaching up with her right hand to pull the iron's plug from a ceiling socket, Mrs. Allen inadvertently touched the iron with her left hand. Her wedding ring was destroyed and her hand burned. Mrs. Allen's replacement, who plaintiffs theorize had failed to turn the iron off after using it, was not in the basement when the incident occurred.

On appeal, plaintiffs contend that the lower court erred in granting a compulsory non-suit on ground of the fellow servant rule.

The rule which precludes liability on the part of a master for loss to a servant due solely to the negligence of a fellow servant ...


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