decided: October 3, 1975.
DANIEL WAYNE LAMBERT AND MATILDA LAMBERT, HIS MOTHER, APPELLANTS,
PITTSBURGH BRIDGE AND IRON WORKS, APPELLEE
Louis M. Tarasi, Jr., Conte, Courtney, Tarasi & Price, Pittsburgh, for appellants.
James A. McGregor, Jr., Reed, Sohn, Reed & Kunselman, Beaver, for appellee.
Jones, C. J., and Eagen, O'Brien, Pomeroy, Nix and Manderino, JJ. Roberts, J., took no part in the consideration or decision of this opinion.
[ 463 Pa. Page 238]
OPINION OF THE COURT
On April 15, 1965, the appellee, Pittsburgh Bridge and Iron Works, sent one of its forklift split-wheels to the Beaver Valley Tire Service for installation of a new tire on the wheel. Beaver Valley was in the business of selling new tires, recapping used tires and doing general tire repair work. The owner of Beaver Valley, Robert McCandless, separated the wheel and removed the old tire. The appellant, Daniel Lambert, who was eighteen years of age and had been employed as a tire changer with
[ 463 Pa. Page 239]
Beaver Valley for approximately nine months prior thereto, then undertook to install the new tire. He placed a deflated new tire on the inner wheel and proceeded to mount the outer wheel. He had no difficulty placing the bolts and fastening the nuts by means of a four-way wrench. He then began to inflate the tire. However, when he had filled it to eighty pounds pressure, the two halves of the wheel violently separated, one portion of which struck Lambert in the head and then, in deflection, carried to the ceiling approximately fourteen feet above the floor where it left an impression in the ceiling plaster.
Subsequently, an action in trespass was brought naming the Pittsburgh Bridge and Iron Works as defendant.*fn1 The case was submitted to the jury with an instruction that Section 392 of the Restatement of Torts (2d) was the law applicable to the case. The jury then returned verdicts in favor of Lambert and his mother, Matilda.*fn2 Post trial motions were timely filed and denied by a court en banc and judgments were entered on the verdicts.
An appeal was taken to the Superior Court which determined the trial court had erroneously instructed the jury that Section 392 of the Restatement of Torts (2d) was the law applicable to the case. Rather, it held, the jury should have been instructed in accordance with the provisions of Section 388 of the Restatement of Torts (2d).*fn3 Therefore, it vacated the judgments of the
[ 463 Pa. Page 240]
lower court and ordered that a new trial be held. The Superior Court, however, remanded the case with an instruction that:
"On retrial, the jury should be instructed fully with respect to the respective duties and responsibilities as provided in Section 388. Furthermore, the jury should be instructed that a failure to exercise the duty of reasonable inspection on the part of the plaintiff or his employer may bar recovery." [Emphasis added.]
Lambert v. Pittsburgh Bridge and Iron Works, 227 Pa. Super. 50, 61 n. 5, 323 A.2d 107, 112 (1974). We then granted allocatur limited to a determination of whether an employer's contributory negligence may be imputed to his employee to bar recovery by that employee in an action brought against a third party.
The above-quoted instruction would indicate that a plaintiff, suing the supplier of the chattel which injured him, may be barred from recovery even though the jury finds the supplier to be negligent if the jury also finds the plaintiff's employer failed to exercise the duty of reasonable inspection imposed by Section 388. However, as we noted in Smalich v. Westfall, 440 Pa. 409, 412, 269 A.2d 476, 480 (1970), "a plaintiff ought not to be barred from recovery against a negligent defendant
[ 463 Pa. Page 241]
by the contributory negligence of a third person unless the relationship between the plaintiff and the third person is such that the plaintiff would be vicariously liable as a defendant for the negligent acts of the third person: Prosser, The Law of Torts § 73 (3d ed.1964). See also, Restatement (Second), Torts §§ 485, 486 and 491 (1965)."*fn4 See also Frankel v. United States, 321 F.Supp. 1331, 1336-1337 (E.D.Pa.1970); Idzojtic v. Catalucci, 222 Pa. Super. 47, 49-51, 292 A.2d 464 (1972). There is no rule of law in this Commonwealth which would render an employee vicariously liable as a defendant for the negligent acts of his employer. Therefore, that portion of the Superior Court's opinion, indicating that Lambert may be barred from recovery if the jury finds his employer failed to exercise the duty of reasonable inspection imposed by Section 388, is incorrect and should be disregarded.
The Order of the Superior Court is affirmed and the record is remanded to the court of original jurisdiction for further proceedings consistent with this opinion.