No. 502 PITTSBURGH, 1980, No. 508 PITTSBURGH, 1980, Appeal from an Order of the Court of Common Pleas, Civil Division, of Westmoreland County at No. 753 of 1974.
C. S. Fossee, Pittsburgh, for Everett, appellant.
James A. Beinkemper, Pittsburgh, for Compton, appellant.
B. Ernest Long, Greensburg, for appellees.
Hester, Brosky and Van der Voort, JJ.
[ 295 Pa. Super. Page 217]
A Petition for Declaratory Judgment was filed in the lower court to determine the relative liabilities of the three defendants for payment to the plaintiff of an agreed upon sum of money. The plaintiff is the administratrix of the Estate of Bruce C. Rankin. Rankin was killed when his automobile collided with a tractor-trailer in Westmoreland County on April 25, 1973. The plaintiff filed suit against William L. Fischer (hereinafter "Fischer"), the owner and operator of the tractor-trailer unit and T. H. Compton, Inc. (hereinafter "Compton"), the lessee of the unit under a permanent year-to-year lease. Everett Trucking, Inc. (hereinafter "Everett"), was later joined as an additional defendant.
The suit was settled prior to trial. The insurance company for Compton paid 50% of the settlement figure and the
[ 295 Pa. Super. Page 218]
insurance company for Everett paid the balance, pending a determination by the lower court of the relative actual liability of each appellant. The lower court found both Compton and Everett liable for 50% of the damages. Compton and Everett filed this appeal of the lower court decision.
On April 25, 1973, the date of the accident, Fischer and Compton were engaged in a permanent year-to-year lease for the hauling of sand from Berkeley Springs, West Virginia to Washington, Pennsylvania. Compton had the ICC rights to haul sand between Berkeley Springs and Washington. If no load was available for hauling on the trip back to Berkeley Springs, Fischer could haul for another motor carrier, providing he acquired Compton's permission beforehand. On thirty separate occasions during 1972 and 1973, Compton's drivers acquired Compton's permission to trip lease loads of coal for Everett. Everett had a lease with H. W. Brown Coal Company (hereinafter "Brown"), for the purpose of hauling coal from Whitney, Pennsylvania to Lime Kiln, Maryland. When Everett did not have enough tractortrailer units and drivers to satisfy Brown's demands, they would enter into trip leases with other trucking companies or individual tractor-trailer owners for the transport of Brown's coal.
On the day of the accident, Fischer had completed a haul of sand for Compton from West Virginia to Pennsylvania. Compton had no load available for Fischer's return trip, so Fischer acquired Compton's permission to haul a load of coal for Everett. At the time of the accident, Fischer was driving his unit to Whitney, Pennsylvania to pick up the load of coal. When Fischer and other Compton drivers hauled coal for Everett under these conditions, payment was made by Brown to Everett, then by Everett to Compton, then to Fischer after Compton deducted a 5% fee.
The written briefs and oral arguments presented by the appellants, Compton and Everett, form two issues to be decided by this Court. The first is whether Everett's ignorance of the fact that Fischer was driving to Whitney, ...