*1 Appellants, Smalich et v. Westfall. al., 1969. Before October Argued Jones, C. Bell, J., *2 and JJ. O’Brien, Boberts Cohen, Eagen, Pomeroy, DeBroff, B. with him David It. Gold, Morton appellant.
Carl him Fisher Fisher, Robinson, Long, E. & for appellee.
Opinion 9, 1970: by October Justice Mr. Eagen, in County. automobiles collided Westmoreland Two of owned Julia by op- vehicles, Smalich, One her Felix Bush Westfall. Julia Smalich and erated by in automobile passengers minor were Michael, son, The other vehicle involved was operated the time. at Louise Blank. Julia Smalich suffered Stephanna which her in the collision caused death. Mi- injuries but recovered. Smalich was injured, chael in was later trespass action instituted, naming This Blank and as defendants. estate both Westfall in both a death sought damages wrongful Smalich Julia action. Marco a survival and Smalich, action claimed minor, damages the minor’s guardian on injuries behalf the minor and on his own behalf as guardian.
At trial, jury returned verdict in all favor plaintiffs against both defendants. Damages were awardеd in the wrongful death action in the sum $1025; the survival action in the sum $2000; the guardian’s action in the sum of $166.50; minor’s action in sum of $20,000. Post-trial mo- tions were filed timely defendant Blank, seeking judgment the verdict in the notwithstanding on actions behalf of the Smalich Estate and a new trial actions on behalf of the minor and guardian. Both motions were en granted by court banc below. The plaintiffs appealed.
The Minor’s Action In this the court *3 instance, below awarded a trial new because it concluded that the verdict was the agаinst of the weight and evidence, was also excessive. We said have many times that the grant of a new trial lies within the inherent of the power trial and on court, we appeal will not interfere with the thereof, exercise unless there been has a clear abuse of discretion or an of error law which necessarily controlled the grant of the trial: Kralik new v. Cromwell, 435 Pa. 258 A. 2d 654 (1969); Gets Balliet, Pa. A. 441, 246 2d Guzman v. Pa. Bloom, 413 198 A. 2d An examination of the record fails per suade us that the сourt abused its discretion award a new trial ing actions the minor’s in involving and juries, we affirm will, therefore, its order in this respect. on
Actions
Behalf of the Estate
The trial
found that
jury
Westfall’s negligent op-
of
automobile
eration
the Smalich
was a proximate
record amply
That
the trial
of the collision.
cause
be
questioned.
and cannot
finding
supports
under
ruled that,
court en banc
After
trial,
be
of
must
Westfall
contributory negligence
facts,
a matter
automobile as
оf the
to the owner
imputed
Es-
the Smalich
recovery by
of
and this precluded
law,
conclusion
Blank. This
tate
defendant
against
Pitts-
our
in Beam v.
on
ruling
court below
based
was
413 Railways negligent Pittsburgh driver’s acts: See Beam v. supra. relationship passen ., between the Co ger very and the driver is therefore a ciátical one, worthy analysis of careful and consideration. relationships
At least three an could exist between (1) and a driver of an automobile: (2) principal-agent; (3) bailor-bailee; master-ser- vant. delivery personalty
A bailment is a
for the ac
complishment
purpose upon
express
some
a contract,
implied,
purpose
after
has been
fulfilled,
person
shall be redelivered to the
who
it,
delivered
according
otherwise
kept
dealt with
to his
directions
Wright
until he
Sterling
reclaims it:
v.
Land
157
Co.,
Superior
Pa.
(1945).
gen
Ct.
43 A. 2d
625,
614
As a
eral
a bailor
rule,
not liable
for the
operation
bailee
of a bailed chattel:
v.
Brower
Employers’ Liability Assurance Co., Ltd.,
“A master of agent:” (Second), Agency a species a “A principal a. master is who employs comment §2, in his service affairs and who con- perform an agent right physical conduct or has trols of the performance service. other A ser-
4-15
agent employed by
perform
vant is an
master
ser-
physical
per-
vice Ms affairs whose
in the
conduct
subject
formancе
the service
is controlled
right
(Sec-
to control
the master:” Restatement
ond) Agency
(1)
(2) (Emphasis added.)
,
Thus
*6
only
a master not
controls
but
results
work
may
also
direct the
manner
work
which such
shall
rendering
agreed
be
and a
done,
servant,
services,
entirely
remains
under the control and direction of the
Joseph
master:
v. United
343 Pa.
Assn.,
636,
Workers
(1942) McColligan
In we now essence, that, to what many prior we have said in automobile accident cases,1 1 Pittsburgh Railways Co., supra; E.g., Beam v. Mazur v. Kle wans, (1950) ; A. 2d P.T.C., Von Cannon v. 365 Pa. 73 397 Suрerior Spegele (1942) ; A. 2d Ct. v. Blum field, Superior 182 A. 120 Pa. Ct. relationships above,
only discussed one of tbe three liability gives to vicarious rise master-servant, that of many Perhaps results negligence.2 of the harsh imputation of contribu- sometimes associated tory negligence to our as- can mistaken be attributed vicariously principal sumption liable that a agent. therefore now state of his We acts relationship only unequivocally a master-servant justify joint enterprisе3 finding an im- a will contributory negligence. putation of ordinary situa- in the doubt that, We have serious understanding of the the mutual tion, owner-passenger reserves a driver is that the and the driving physical right details over to the con- to submit himself that the driver consents more It seems reasonable of a driver.” trol “back-seat understanding that the driver will mutual that the retaining accomplish a result, use care and skill *7 subject yet operation manner of the trol the over owner-passengеr duty of the of obedience to the wishes only things destination. Such would as to such relationship agency one of master- and not stitute an undoubtedly although are situations there servant, might understanding to con- be such as the well where been Pa. Ct. 169 [2] Superior recognized Tbe necessity Ct. 299 and in the Connor (1928) ; a master-servant older cases. v. Penna. McMahen See, e.g., Railroad, Co., relationship v. White, Lassock 30 24 Pa. seems to have v. Pa. Bileski, Superior Superior 94 Ct. 241 3 enterprisе joint a or absence of existence the While below, we have considered record in the court here or raised proof question established mind. If such a rela in recovery by preclude existed, tionship Smalich Es this would right reached court result albeit for the tate, if the lower and Taylor wrong reason, be affirmed. v. Churchill its decision (1967). However, Country Club, 228 A. 2d 768 we 425 V. joint enterprise. did not evidence establish a that satisfied are (Second), §491 Torts Restatement See
417 relationship.4 stitute a master-servant All that we now relationship is that hold character created parties express must be determined from their agreement or from the circumstances, which presence disclosed at trial. “The mere of the owner in an being automobile while is in driven a necessarily manner another does not lia make him injury ble thereby, impute for an caused or to him the Pittsburgh Railways driver’s :”5Beam v. Co., supra, longer pre any at 370. Nor will it create a sumрtion of a relationship. master-servant presence
We do not mean, however, entirely owner is legal or that there no irrelevant, significance present an owner in his car has power to control it.6 These are relevant determin ing neg whether the actually been has ligent failing himself7 in to control the conduct Any driver. passen §495. See Torts, ger required to exercise care reasonable own safety, recovery and will be from barred if he unreа example, inexperienced For learning, if the driver were or prospective purchaser driving under actual directions. 5 Analogous (hus (Second), hereto are Restatement §487 Torts wife), (parent child), (bailee) band and §488 and and §490 guest (passenger vehicle). in a Beam, Pittsburgh, Railways Co., supra; v. See Mazur Kle v. supra wans, 6; supra P.T.C., headnotes Von 3 and Cannon v. head supra 8; Spegele Blumfield, note headnote 1. actually apply The statement seems to havе been intended to appeared Jacobs, to this situation. It first Bell v. 261 Pa. (1918) A. this context: “It was defendant’s car and acquiesced Finlc, acting him, did, he what who was *8 personally be excused because he not cannot at the wheel. A riding responsibility in car is man his not relieved from out for management because, permission, acting its another is especially driver; tacitly this is so where the and owner assents to presumption, the car is driven. the manner which There is a present rebutted, power owner that an in his not here car has to it.” control be driver of a wbicb to warn danger fails
sonably
to control
of an ability
or to make use
discovers
Landy
Rosenstein,
be
v.
wbicb
possess:
negligence
Penna. Railroad
A. 855
v.
Highton
Mr. Chief Justice concurs the result. Bell jury against Since rendered a verdict defendant Blank charge charge more favorable her when than a in ac present opinion be, our cordance defendant Blank has hereby. harmed not been Opinion
Concurring Mr. Justice Roberts: I repudi- am today partially Court pleased I doctrine. the imputed contributory negligence ates be- join however, am unable to majority’s opinion, I “both ways” cause believe that a limited adopting *10 of reform falls of the accomplishing degree it short test, in I am disturbed necessary this area. particularly in to the doctrine continuing the majority, apply much so places the master-servant relationship, to master over a on the control a has ser- weight physical in concur the result. I can only therefore vant. doctrine has The contributory negligence imputed ob- For one, quite been criticized on two it is grounds. fiction is based on the absurd vious that the doctrine the to control that the has the “right” owner-passenger can a In real however, passenger vehicle.1 world, control over in no exercise way operational safe But if he the owner.2 in which he even is rides, vehicle requires doctrine contributory negligence imputed constantly advise owner-passenger only if if be. For need but also to seize the wheel driver, setting contributory negligence, imputed in the of The doctrine English case, case of roots in the 1849 in this its involved has Thorogood Eng. Rep. Bryan, Thorogood was 452. 8 C.B. against public passenger the owner of omnibus of a a suit a recovery passenger denied because The was omnibus. another negligent. driver, omnibus, other was of her as well driver theory passenger of control had a measure over The was “employed” driver; “[i]f the driver and he is dissatis he had obliged conveyance, he is not him mode of avail fied with written, As Dean Prosser has a at this was Id. 132. of it.” self England fiction,” later abandoned which “nonsensical Prosser, had followed America. See which those states (3d 1964) (citing cases). Torts 502 ed. of the Law Handbook degree course, can, exercise some The owner may times, required give driver; or, he at he selects when advice, per Improper like “slow down.” of directional kind some negligence, be active but duties that is not these formance this case. involved actively pull
he does not seek to Ms driver out of any he will have to trouble, he shoulder losses may suffer in an accident. Of course if he does inter- likely actively fere, he negligent.3 to be found One wonders what riding the owner should do if he is just perhaps go the back sleep.5 seat;4 hе should A second weakness in the doctrine of tributory negligence from arises courts fact that have using often failed to discern the difference between the fiction impute negligence control to when the owner-passenger using is the it to im- defendant, pute contributory negligence when the plaintiff. assumption is the has been that if the only driver’s imputed, logical it is to like- impute contributory negligence. wise But there is justification imputing no contributory negligence, strong psychological other appeal than “the of all rules cast in logical symmetry.”6 the form of balanced and *11 Unfortunately, empty approach, formalism of this example an Harper of what and James have termed the “both-ways even test,”7 became imbedded in the first 3 passenger physical “In ability the usual case the has no operation car, opportunity of the and no to interfere it; any attempt part with on his so in do fact would be a dangerоusly distracting piece driving might very of back-seat which negligence Prosser, well amount to in itself.” Handbook of the Law (3d 1964). of Torts 494 ed. 4 Pennsylvania R.R., 372, 377, 803, Cf. Nutt v. 281 126 Atl. (“But (1924) guest, especially an invited 805 one who occu pies opportunity rear seat the car where no of control exists operating not concerned ... with of the car and be cannot operation joining the driver in its viewed 5 Indeed, contributory often been has held that a driver’s asleep to an cannot be who is See, e.g., Roadway occurs. the accident v. when Transit Stafford 1948) (applying (3d Pennsylvania Co., law) 2d Cir. F. 920 ; 165 Lines, Caster, Greyhound (Del. v. A. Inc. 216 2d 1966). 689 S. Ct. 6 Harper James, The Law of Torts & 2 1273 7 at 1273-77. See id.
422 is barred plaintiff of Torts §485: “[A] aof act omission
from recovery them relation between only if, but if, third person a defend- be liable as that plaintiff is such such negligent caused to others by ant harm of a third person.” duct to see quick have been and commentators
Courts
The fiction was criti
in the doctrine.
these two errors
see
to a horse-drawn carriage,
applied
cized even when
203,
111 N.Y.
Co.,
199,
York
H. R.R.
v. New
C. &
Hoag
mounted
and the criticism
(1888),
18 N.E.
649
648,
at
“Any
automobiles:
applied
when the fiction was
of control
right
wresting
of the
exercise
tempted
foolhardy.
Equally
from the driver would
wheel
ma
operation
efficient
driver’s
menacing
denunciations,
strident
raucous reproaches,
chine are
from the back
admonitions
unctuous
even persistent
Mich.
91
395,
353
N.W.
Korff,
387,
v.
seat.” Sherman
statements,
see, е.g.,
For similar
485,
2d
2d 355,
S.E.
840, 848,
193 Va.
Lingon,
v.
Painter
177 Misc.
Co.,
Contracting
v. Veeder
Jenks
360 (1952);
281 (1941), aff’d,
2d 278,
30 N.Y.S.
dis
(1942),
2d 230
appeal
37 N.Y.S.
Div. 979,
App.
Similarly, seem it was written In 1932 “[c]ourts criticized. or deny- involved granting the policies unaware from be different those con- plea the defensive ing of a damages master the responsibility trolling *12 and that latter are servant, prob- of his the conduct re- providing with financially simply concerned ably Gregory, Yicarious Responsibili- defеndant.” sponsible 41 Yale Negligence, L.J. 833 Contributory 831, ty Los Angeles-Seattle Motor Eso- In Johnson
423 press, Ore. 352 P. 2d Inc., 387, of Oregon Court the doc- (1960), Supreme rejected trine “The stating: lia- practical necessity imposing on bility an owner in the cases which do the doc- justify trine of is not imputed liability present the situation where owner injured is an own car. passenger two-way test of the Restatement does commend itself as either useful or Its necessary. only virtue, pointed out Harper James, supra, is that it is logical and symmetrical. Important legal rights ought to have better than mere footing architectural symme- try.”
It should be noted that the majority does not adopt the old “both ways” test but rather the re- view vised Restatement of for while Torts, partially abolishes the imputed negligence that doc- doctrine, trine is retained in the areas of master-servant rela- tions and joint See enterprise. 491 Restatement §§486, of Torts I (Second). submit However, the criti- cisms I hаve noted above concerning tributory negligence doctrine force to apply equal the two exceptions carved out second Restate- ment.
In days these of congested travel on high speed highways, dangers that someone requiring wrest a vehicle from the if driver the latter is neg ligent are certainly present whether driver bailee, agent servant of the passenger. The Supreme Court of Minnesota re-examined the whole problem imputed contributory negligence recently a well-rea soned close opinion deserves study. See Weber v. Stokely-Van Camp, Inc., Minn. N. W. 2d There the court repudiated the applica of the doctrine to tion the master-servant relation in cases, automobile negligence stressing the absurdity the control argument, and absence of need for a
solvent unlike vicarious cases defendant, liability where accountable the master is held for the properly negli- of his servant. gence
I look to the when forward this Court day completes reform in area. its v. Fiala.
Chanoff, Appellant,