No. 34 E.D. Appeal Dkt. 1983, Appeal from the Order of the Superior Court dated November 30, 1982, entered at No. 1432 Philadelphia, 1980, Reversing the Order of the Court of Common Pleas of Lebanon County dated May 16, 1980, entered at No. 1790 Civil 1976, Pa. Super. ,
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Zappala, J., files a concurring opinion. McDermott, J., files a dissenting opinion.
In this appeal we have agreed to review a decision of the Superior Court granting the plaintiffs in an unsuccessful trespass action, who had asserted both a products liability claim against the manufacturer of a tractor and a claim of negligence against the tractor's owners, a new trial against the owners, notwithstanding a jury verdict in the owners' favor, on the ground that a non-suit as to the manufacturer had been improperly granted at the conclusion of the plaintiffs' case. For the reasons which follow we reverse the order of the Superior Court and remand for further proceedings.
On August 8, 1974, appellee Douglas J. Meyer, then ten years of age, was seriously injured while riding a tractor owned by appellants, the Heilmans, and manufactured in 1952 by International Harvester Company, as the tractor was being driven by a Heilman employee to pull a manure spreader on the Heilmans' farm in Lebanon County. Douglas' injuries, which necessitated the amputation of his left leg from the knee down, resulted when he lost his balance and came in contact with the tractor's revolving shaft, which powered the spreader; the safety shield provided by the manufacturer to cover the shaft had been removed. Douglas and his parents, appellees Larry M. and Boneta F. Meyer, subsequently brought an action in trespass naming the Heilmans and International Harvester as defendants. The case proceeded to trial before a jury, and at the conclusion of the Meyers' case, the trial court granted International Harvester's motion for a compulsory non-suit. After the Heilmans presented their defense, the jury returned a verdict in their favor. The Meyers' motions for removal of the non-suit, for a judgment n.o.v. and for a new trial were denied, and they appealed to the Superior Court. That court reversed the order of the trial court granting the
non-suit and awarded a new trial as to both defendants on all issues. Meyer v. Heilman, 307 Pa. Super. 184, 452 A.2d 1376 (1982). We granted the Heilmans' petition for allowance of appeal.*fn1
The propriety of the Superior Court's removal of the compulsory non-suit entered in favor of International Harvester is not before this Court. We are concerned only with the Superior Court's award of a new trial as to the Heilmans, which had the effect of overturning the jury verdict in their favor. In support of that action, the Superior Court reasoned as follows:
Our removal of the compulsory non-suit here as to International [Harvester] without granting a new trial as to the negligence of the defendants Heilman would unfairly deprive International of the opportunity to defend on the basis, for example, that defendants Heilman were wholly responsible for the injury to Douglas in that they had removed the master shield.
307 Pa. Super. at 191, 452 A.2d at 1379.
In reaching that conclusion, the Superior Court relied upon Frank v. W.S. Losier & Co., Inc., 361 Pa. 272, 64 A.2d 829 (1949), in which this Court stated:
[T]he proper practice, before entering a non-suit or directing a verdict in favor of one of two or more defendants, is to allow the other defendants to present their testimony on the question of the liability of each and all of them: Shapiro v. Philadelphia, 306 Pa. 216, 159 A. 29; Parker v. Philadelphia Rapid Transit Co., 308 Pa. 209, 162 A. 664. It is true that Pa.R.C.P. 2232(d) provides that when a plaintiff joins two or more defendants and the evidence does not justify a recovery against all the court shall enter a non-suit or direct a verdict in favor of any defendant not shown to be liable either jointly, severally or separately. But this was merely intended, in accordance with the Act of June 29, 1923, P.L. 981, to abrogate the strict common-law rule that where a joint liability of defendants was pleaded the plaintiff was obliged to recover
against all or none; it certainly was not intended to deprive a defendant of the right to present testimony before a co-defendant should be relieved from liability ...