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ALVIN G. TURLEY v. BRUCE A. KOTTER (02/28/79)

decided: February 28, 1979.

ALVIN G. TURLEY, APPELLEE -- NOS. 717 & 719,
v.
BRUCE A. KOTTER, APPELLEE -- NO. 717, APPELLANT -- NO. 719, V. HENNIS FREIGHT LINES, INC., APPELLANT -- NO. 717, APPELLEE -- NO. 719



Nos 717 & 719 April Term, 1977, Appeals from Order of the Court of Common Pleas of Allegheny County, Pennsylvania, Civil Division at No. 915 October Term, 1971.

COUNSEL

William R. Tighe and with him Scott E. Becker, Pittsburgh, for appellant at No. 717 and appellee at No. 719.

Theodore O. Struk and with him David M. Neuhart, Pittsburgh, for appellant at No. 719 and appellee at No. 717.

James A. Mollica, Jr., Pittsburgh, for appellee Alvin G. Turley.

Price, Hester and Watkins, JJ.

Author: Watkins

[ 263 Pa. Super. Page 527]

These appeals are from the order of the Court of Common Pleas of Allegheny County, Civil Division, after a verdict of $9,000.00 rendered in favor of the plaintiff-appellee, Alvin G. Turley.

Plaintiff, Alvin Turley, is the owner of a tractor-trailer and brought this action against the defendant, Bruce A. Kotter, to recover the amount required to repair his tractor-trailer after it was involved in an automobile accident on January 29, 1971, with a vehicle being operated by one Robert F. Wahl. The Wahl vehicle had crossed over into the opposite lane of traffic and collided with the tractor-trailer after having been struck by a vehicle operated by Kotter. At the time of the accident plaintiff's tractor-trailer was being operated by one McKinley. In a previous suit brought by the estate of a person in the Wahl vehicle the jury rendered a verdict holding Kotter, McKinley and Hennis Freight Lines, McKinley's employer, liable. In the instant case, Kotter joined Hennis as an additional defendant.

After the conclusion of the testimony, the trial court granted plaintiff's request for binding instructions removing

[ 263 Pa. Super. Page 528]

    the liability issue, from the jury. At first the court refused plaintiff's request but then reconsidered after oral argument of the parties' counsels to the jury and granted plaintiff's request. The court then directed a verdict against both defendants on the issue of liability.

Since the negligence of McKinley, the operator of the tractor-trailer, Kotter, and Hennis was admitted as a result of the first trial involving the passenger in the Wahl vehicle the only issues at this trial were: (1) the amount of damages; and (2) the question of whether McKinley was a servant of Turley. If he was a servant of the plaintiff then his contributory negligence, imputed to plaintiff via the respondeat superior doctrine, would have barred recovery against the defendants by plaintiff, as the negligence of a servant or employee acting within the scope of his employment will bar recovery by the master or employer from a negligent third party. Von Cannon v. Philadelphia Transportation Co., 148 Pa. Super. 330, 25 A.2d 584 (1942).

The record reveals that in 1971 the plaintiff was the operator of a service station, a mechanic, and the owner of five tractor-trailers. Plaintiff's tractor-trailers were leased to Hennis pursuant to a written lease agreement dated July 16, 1969. Hennis was a shipper engaged in transporting freight in interstate commerce. Section B of the lease provided: "During the term of this lease, the leased equipment shall be in the sole and exclusive possession and control of the LESSEE". Section H. of the lease provides: "The equipment which is the subject of this lease shall be driven by an employee of the LESSEE at all times that it is in the service of the LESSEE . . ." "The LESSEE expressly reserves the right to control the manner, means and details of, and by which the driver of such leased equipment performs his services, as well as the ends to be accomplished . . ." (Emphasis added) The record also reveals that ...


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