*1 prices by resale retailers fixed for ment that competitive one area.” uniform judgment, my Fair Act does In the so-called Trade Legislature apply by intended not and was never competition except anything in trade-marloed unfair goods territory. The in the same unreasonableness interpretation untenability majority’s apparent clearly realizes more when one this statute logically necessity if they hold that would had so-called dealer in Pa. Fair Trade Erie, one retail plaintiff, every it would bind dealer contract with the Philadelphia every throughout as dealer as well absurdity was never intended entire State. Such Legislature. I For this reason reverse injunction granted an Court which decree the lower against defendant. Appellant, Hnath.
Muroski, *2 Argued November 1957. Before 18, C. J., Jones, Jones Bell, Musmanno, and Chidsex, Arnold, Cohen, JJ. Goppolo, M. him R. with B. Woods,
Lawrence Woods Gregory Goppolo, ap- & for Woods, Driscoll, pellants. Mutzabaugh, him T. with Robert
R. Mutza- Pontzer, Healy appellee. baugh & é Pontzer for Pontzer, 1958: March Mr. Justice Opinion Bell, Company, a employee Pure Carbon Daniels, Marys, principal St. was at Corporation office whose package to deliver Pennsylvania, instructed picked Airport. he October 15, 1954, On Bradford He Hnath. company, named Robert up, friend for hour package late of the and because delivered be closed office would decided afternoon car used his own his home. He return he would eight a mile paid wages cents his time and and was driving he became back While of his car. the use way. the rest Hnath to drive and asked tired negligently Muro- and in a collision drove Hnath injured and three children, his wife Muroski, ski’s car, *3 result of the accident. died as a one of whom plain- jury all the favor of returned a verdict The against The trial entered defendants. Court all the tiffs judgment in favor of obstante veredicto non a granted Company, refused several dis- will be hereinafter new which a trial motions cussed. considering that in a motion law
It is hornbook “plaintiff judgment must be non obstante veredicto given the evidence which is most favorable the benefit together reasonable there- all inferences to her Berger, Pa. 708. 388 130 A. 2d 433, Bream v. from.”: Company stranger’s is liable for a Pure Carbon (Daniels) express employee only negligence had if its engage authority implied Hnath to drive auto- or employment, because an emer- or if Hnath’s mobile, reasonably necessary performance gency, for the was Company. of Pure Carbon the work George, v. 308 Pa. 162 A. In 201, Corbin 459, 204): (page “The relation of master said Court imposed upon person without his servant cannot exception express implied. or to this rule consent, 236 may engage
is that a servant
an assistant in
case
emergency,
an
perform
where he is unable to
the work
Fryer
alone: Kirk v.
&
Showell,
276 Pa.
Co., Inc.,
587;
Byrne
Pittsburgh Brewing
v.
259
357. The
Pa.
Co.,
principle
same
is laid
down D’Allesandro v. Benti
voglia, 285 Pa.
. .” See
72,.
to the same effect: Ginther
v.
Company,
Graham
348 Pa.
33 A. 2d
60,
923;
Transfer
Company,
White v. Consumers Finance Service
339 Pa.
Plaintiff’s contention trip Daniels on the return to his home still employer’s Company vigorously which the business, denies and contests*—that the tiredness of the driver (Daniels) emergency justified created an employment of is an unwarranted distortion Hnath, principle utterly of the above mentioned and is devoid permit employee girl of merit. It would to take a pick up stranger friend or to for a ride and under permit pretexts, of half a dozen her or him drive employer’s thereby employer car and make the liable stranger. only for the acts of a total This is not con trary open to established but would law, wide the door Lynett, Tusko v. 326 fraud. Pa. 192 A. 410; 449, Reis v. 337 Pa. 12 A. 2d Mosebach, 412, 37; Jacamino Freight Superior Company, v. Harrison Motor 135 Pa. George, supra; 364; Ct. Corbin Pa., Ginther Company, supra; v. Graham *4 White Pa., Transfer Company, v. Consumers Finance Service 339 su Pa., pra. correctly
It is clear that the trial Court entered a judgment non obstante veredicto favor of Company. * Company, 60, v. Graham Ginther Cf. 348 Pa. 33 A. Transfer Light Pennsylvania Co., 923; v. Holdsworth Power and 2d 337 Pa. Byrne Pittsburgh Brewing Co., 235, 412; 357, v. A. 2d 10 259 Pa. A. 103 53.
237 granted The lower Court also a new trial the suit (in of Muroski & v. Hnath which Muroski, appellant), Sr. is because the verdict was so excessive granted as to shock its conscience; a new trial to Jane inadequacy Muroski because of the of the verdict; refused motions for a new trial in the case of Muroski, a Jr., Minor;* Bernice Muroski, Minor;* and William J. Administrator Muroski, Sr., of the Estate of Eliza beth Deceased.* Muroski, considering
In
the action of the
lower Court
granting
refusing
clearly
or
a new
trial,
law is
appellate
settled—an
Court will affirm unless there
has been clear abuse of discretion or an error of law.
go
Pittsburgh Railways
War
v.
376 Pa.
101
Co.,
168,
Karcesky
A. 2d
v.
638;
382 Pa.
114
2dA.
Laria,
227,
Allegheny County,
Smith v.
150;
377 Pa.
2d
105 A.
365,
v.
137; Edelson
380 Pa.
111 A. 2d
Ochroch,
426,
455;
Waybright,
Foster v.
367 Pa.
bleeding in the to remain Ms He bad from ear. until use crutches then had to for a month and about during he was time all of which 1955, about June 1, unable work. suffering shock in
“Mrs. addition Jane Muroski, large thigh and a or left femur had a fracture of her thigh injury to the The forehead. contused area on her respond result as a did not to treatment or femur surgery undergo aon had to this Muroski Mrs. testimony it According to the of occasions. number possible Novem- until about to determine would not operation performed Jane the last ber whether thigh good of the in union result a would Muroski have Jane Muroski would if it did, bone even and, permanent which and knee in her left ankle stiffness . life. . . her for the rest of her a detriment to would be regard filed for a new trial “In to the motion opinion George Hnath it is the Daniels and Robert J. of William the verdict favor of the court that amount of is excessive. in the $50,000 Muroski, Sr., agreed stipulation By it the event of counsel was William J. in favor of Muroski, Sr., aof verdict expenses entitled to which he would be total amount plaintiff’s this which included be $14,783.89, wages. jury, William awarded therefore, loss of pain the sum his own $35,216.11 J. Muroski, Sr., only suffering, at the time of trial was some day, plus fatigue pain at the end of the the loss society period of his wife for a services years, and such loss of her services and com- over two panionship he would suffer the future. as Mr. disclosed that Muroski hired
“The evidence housekeeper days at to assist wife five a week per day, dollars or about thirteen hun- rate of five year. . . . dred dollars *6 intention, compensate persons
“It is the of the law to injuries in cases of this they kind for the and losses have sustained but not to enrich them over and above compensation what would be damages a fair for their injuries. and . . . the verdict in of favor William J. grossly
Muroski,
is
Sr.,
so
therefore,
excessive
toas
justice
shock the court’s sense of
and the
will,
court
requires, grant George
as the law
therefore,
and Robert Hnath a new
trial,
the case of William
against
plaintiff,
J.
unless
Muroski, Sr.,
them,
the
willing
William J.
Muroski, Sr.,
remit $20,000
of
by
the verdict which was returned for
jury
him the
accept
payment
and
full
$30,000
of his claim: Gail
Philadelphia,
versus
.. Mrs. Muroski most suffered the injuries, pain suffering, severe underwent most and part greater years, in a for was cast of two will require surgery further medical attention and which probably extend to at least will November of and pain consequently suffer in the future, even if a good thigh, union is obtained of fracture her will permanently be with a stiff afflicted knee and stiff only awarded the sum she ankle, was We $10,000. clearly in her favor think that verdict was inade- quate. . . .” carefully reviewed the record
We have and while opinion may a sincere difference of there as (Sr.) for Muroski the verdict whether excessive, nevertheless say excessive, if so how we cannot has abuse of there been discretion or error of law. judgments orders of are the Court below
affirmed. Opinion Dissenting
Concurring Mr. Jus- : tice Musmanno Opinion Majority’s part of the I dissent from entering court in affirms the action of the lower Company. judgment n.o.v. in favor George had been who On Daniels, October 15, 1954, years, picked employed by Pure Carbon over six company Marys, package plant up in St. at the take, airport shipment to one the Bradford company’s A Hnath, Robert customers. friend, accompanied trip made in which was him on the arrangement whereby the under an Daniels’ automobile *7 mileage trips, company' paid to is, him for both that airport. On Daniels’ return from the from the having dispatched company’s package airport, the in experienced heavy he with instructions, accordance sleep night fatigue before had had little the since he morning. Fearing early succumb and had risen that to companion his he wheel over to to turned the slumber, sleep. the car in a then to Hnath drove went negligent head-on with an auto- manner and collided being operated by J. Muroski William and car- mobile, family. rying of the Muroski One of the four members injured. passengers They killed was and the others against trespass brought Hnath, Daniels, actions Company and recovered the Pure Carbon verdicts judg- against all lower court entered defendants. Pure on the asserted basis Carbon, ment favor of the accident Daniels not at the time of was en- that employment gaged in the of his and therefore course delegate company responsibility to could not Hnath. position has the This Court affirmed the lower court respect. in this appellee,
It is contended Pure Carbon consigned Company, Company’s Daniels that once package Allegheny airport, Airlines at the his responsibility company to the terminated and the com- argues pany’s responsibility that himto ceased. It happened Saturday when afternoon, since this on a company’s plant Marys, Daniels had in St. closed, very argument ignores This was now on his own. quite namely, important circumstance, obvious Marys on St. had sent Daniels to since Pure Carbon got company had to see to it that it business, plant Marys, located and to St. where the back man his The first who where Daniels made home. right his have the to assume that shot to the moon will provide sponsors means the manner and the will get him back to Mother Earth. engagement on October for Pure Carbon
Daniels’ he until did and could terminate not, not, 15, 1954, During many years’ Marys. his had returned to St. trips, employment he had made points company, as York and as distant New Certainly Pittsburgh. be contended it could not company, when Daniels arrived behalf Pittsburgh employment ceased and New York or points faraway from those he was his return that on trips company have On those boss. his own movements until he returned over Daniels’ control *8 away Marys. far that Bradford is not as The fact St. change Marys York as New does not from St. interchange employment of Daniels’ nature employer employee. responsibility between that Daniels had made at the trial It testified was trips airport thirty to the for Pure Carbon. least at company’s in travelled he car but On occasion his For time he used own automobile. of the most Marys-Bradford trip, outgoing and return St. which twenty about two hours and minutes, in all consumed per eight paid much hour and mile so cents a he was his car. the use any I do not see bow can there be doubt whatsoever airport returning that from the when Daniels was Marys engaged furthering employer’s St. he was in his duty Marys. He business. He had a return St. Marys. company in worked St. The would not have returning Marys, company’s tolerated his not St. home. says, however,
The lower court if even it agent assumed that Daniels was an of Pure Carbon Marys, on his return to St. he could not fasten on the company allowing responsibility for Hnath to support proposition his drive car. In the lower quotes: court cites certain relation cases* “The imposed upon person master and servant cannot be expressed implied. excep without his or consent, may engage tion to this rule is servant an emergency, assistant ease where he is unable to perform (Emphasis supplied). alone” worlc opening exception, After the door of the the court slams it shut with the statement that there was no emergency justified asking Daniels’ Hnath to drive emergency? the car. But was no there, fact, IAs read I the record, find that there was indeed an emergency, emergency which is the most serious of possible perils all which can confront a motorist on highway night. Entering feeling at into a skid, sliding one’s car perceiving off an embankment, another turning path car into one’s of travel are all innocuous contingencies comparison peril to the which was assailing Daniels on his return from Bradford, when, enveloped as darkness the road in shadows, greatest felt wrong man’s at the friend, but, time enemy, beginning most mortal Sleep to disable him. hammering eyelids. at his once a And, driver’s * George, 201; Lynett, Corbin v. 308 Pa. Tusko v. 326 Pa. *9 etc.
eyes helplessly close and his hands fall from steer- the ing gear, the uncontrolled car into the bounds forward paved lane with and destruction, mutilation. death, upon trip piece Marys, that If, return to St. glass seriously had fallen from and cut the windshield question Daniels’ no one would that this would hand, emergency” justify be a “case his en- would complete gaging journey. assistant the If a giving up wound would warrant Daniels’ Wheel, the threatening certainly insensibility state of would imperiously demand it. says fatigue
The learned court that below, however, impending justify unconsciousness not Daniels’ did calling upon very Hnath to assist him. The court suggests helpfully that Daniels “could off have driven slept nothing the road and in his car.” There is the record which indicates that at the time hammer the sleep blow of was about to there con- strike, was a spot along venient road the where Daniels have could stopped sleep enjoy up which knits the raveled sleeve of care. illuminating suggestion.
The court makes another says gone got It “could have to a hotel I a room.” While not am as familiar Brad- Marys Judge ford-St. Koad as the learned who wrote opinion say I court I below, have I travelled that road and do not recall that the con- tinuity by great of the drive was disturbed number flooding blinding lights hotels the lane of travel with annoyance standing of hotel clerks the side urging stop of the road me to to eat, dine, rest. And there was a if, indeed, hotel somewhere between Marys, Bradford and St. happened what could have Daniels between the moment crying he felt the need sleep Anally and the moment he stumbled off the lobby hypothetical car into hotel? *10 suggestions say respect, I the that With all mere by are indicated, the as above court, made lower argumentation along highway and debate refuges proposition any for residence do not offer solid Company law absolve the which would happened road responsibility on the from for what recognized em- Marys from St. its Bradford to when patent his emergency, ployee, man at asked a in a away, assist him. side, and not miles respect, say, continuing that the IAnd. would with Opinion Majority by of this Court reason offered liability Company exempting from for the Pure Carbon convincing employee’s that is more than act no its Opinion says Majority court. The offered the lower (Daniels) say cre- driver that to “the tiredness of the employment justified emergency ated an men- is an distortion of the above Hnath unwarranted (Em- principle utterly is devoid of merit.” tioned phasis original). Majority Opinion says further The girl permit employee to “would take a this pick up stranger for friend or to a a ride and under permit pretexts, a her or him to of half dozen thereby employ- employer’s car and make the drive stranger.” er of a liable the acts total Majority “half The does not dozen enumerate a pretexts” his which would induce the motorist to have speculate girl friend drive the and we cannot car, pretexts principle might what those be. no Therefore, predicated foggy law can on so nebulous and a hypothesis. mystery Even more shrouded in Majority’s suggestion that a a motorist would have punish stranger employer drive his car order to liability. Why? Majority says girl that to have friend or stranger drive a man’s car under the in- circumstances open door dicated “would wide the fraud.” What happened door and what fraud? What has to the law happened of evidence? And what has delibera- to the jury? tions of a Would the court attendants in the imagined depicted, clearly which are not situations, too pass plugs jury around blindfolds and ear so they taking could not see and not hear what was place in the courtroom? deny recovery proved liability,
Are we to in cases of only day possibility because of the that in some future imposters phantoms conspire might miscreants, *11 jury? purpose very deceive court and Is not the rip away pretense, trial to strike at falsehood, reveal truth? given
No one should be denied what the facts in a prove case he is entitled on the basis that to, to allow undeserving him to recover would mean that an liti- gant might present day spurious some claim. That logic mockery every kind of would make a court jury system. the land and the whole eyelids growing heavy When Daniels felt his did he every stop driving. what motorist should do— figure eyelids And when the of Justice finds her growing heavy journeyings because of the convoluted piece litigation many suppositions, of a into fields of conjectures, request hypotheses, she should reasoning brought the course of back to the true relevancy Marys. road of Bradford between and St. I dissent. Upper
Wilson Moreland-Hatboro Sewer Joint
Authority, Appellant. Argued January 1958. Before J., Bell, C. Jones, JJ. Jones Chidsey, Musmanno, Cohen,