Opinion
November 16, 1949.
January 3, 1950.
Negligence — Automobiles — Passenger — Suit against operator.
1. A passenger in an automobile who is injured by the negligence of its operator is entitled to recover damages from him regardless of the relationship between them. [504]
2. A passenger in an automobile who is injured in a collision with another automobile is barred from recovering from the operator of the latter car where the other operator was also negligent and he was the passenger's servant or they were both engaged in a joint enterprise. [505] Practice — New trial — Grant as to one defendant — Mistake of law by court.
3. Where there has been a verdict for both defendants in a negligence case, an error of law in the charge of the court relating to one defendant but which did not affect the liability of the other defendant either factually or legally does not warrant the granting of a new trial as to the latter or the nullification of the verdict in his favor. [504-5]
4. Where a court grants a new trial solely because of its mistaken view of the law, the order granting a new trial should be reversed. [505]
Argued November 16, 1949. Before MAXEY, C. J., DREW, LINN, STERN, PATTERSON, STEARNE and JONES, JJ.
Appeal, No. 194, Jan. T., 1949, from order of Court of Common Pleas No. 3 of Philadelphia County, Dec. T., 1947, No. 3030, in case of Paul D. Denton, Jr. v. Michel's Bakery Co. et al. Order reversed.
Trespass for personal injuries. Before MILNER, J.
Verdicts in favor of defendants; plaintiff's motion for new trial granted as to both defendants. Original defendant appealed.
Thomas E. Comber, Jr., with him Pepper, Bodine, Stokes Hamilton, for appellant.
James E. Gallagher, Jr., with him Wilson Stradley and Stradley, Ronon, Stevens Young, for plaintiff, appellee.
Robert A. Detweiler and George H. Detweiler, for individual defendant, appellee.
Plaintiff was in an automobile which was being driven by a friend, Kenneth Parker, and which came into collision at a street intersection with a truck owned and operated by Michel's Bakery Company. To recover damages for the injuries he sustained he brought suit against both Parker and the Bakery Company. The jury returned a verdict in favor of the defendants. Plaintiff filed a motion for a new trial assigning in support thereof nine reasons. The court en banc rejected all of these except two which it sustained, namely, that the court erred in charging that plaintiff could not recover against Parker for the latter's negligence, and that the court erred in failing to charge that the defendants could be jointly liable to plaintiff. Because of these two assumed errors the court granted a new trial as against both defendants, from which order the Bakery Company appeals.
It appears that the car in which plaintiff was riding was owned by his brother-in-law who, on this occasion, allowed plaintiff and Parker to use it. At the time of the accident they were on their way to a restaurant for breakfast, and they also intended to make some business calls. The question as to the relationship between Parker, who was driving the car, and plaintiff, who was seated therein, is of no legal importance in the case because, whatever it was, plaintiff was entitled to recover from Parker if the latter was negligent in the operation of the car, for no person may negligently injure another without being responsible for damages: Johnson v. Hetrick, 300 Pa. 225, 232, 150 A. 477, 479; Perry v. Ryback, 302 Pa. 559, 564, 153 A. 770, 771; Hopshire v. Yesenosky, 157 Pa. Super. 545, 547, 43 A.2d 351, 352. But while it is true, therefore, that the court erred in charging the jury that plaintiff could not recover against Parker for the latter's negligence, this was a pure error of law which did not affect the liability of the Bakery Company either factually or legally. Since it concerned only Parker, and did not involve any question in regard to the way in which the accident happened, it did not warrant the granting of a new trial as to the Bakery Company or the nullification of the verdict in favor of that defendant: Fitzpatrick, Administratrix, v. Sheppard, 346 Pa. 240, 29 A.2d 475; cf. Frank v. W. S. Losier Co., Inc., 361 Pa. 272, 64 A.2d 829, 831.
That the court failed to charge that the defendants could be jointly liable to plaintiff was not error at all. If Parker was not negligent there could not, of course, have been a recovery from him, and if, on the other hand, he was negligent there could not have been a recovery from the Bakery Company, because, whether Parker was plaintiff's servant or whether they were both engaged in a joint enterprise, in either event, as against the Bakery Company, the negligence of Parker would be imputed to plaintiff and a recovery from the Bakery Company would thereby be precluded: Schofield v. Director General of Railroads, 276 Pa. 508, 510, 120 A. 449, 450; Hepps v. Bessemer Lake Erie R. R. Co., 284 Pa. 479, 481, 131 A. 279; Curry v. Riggles, 302 Pa. 156, 160, 153 A. 325, 326. It follows that the defendants could not have been jointly liable to plaintiff, and the court committed no error in failing to charge to the contrary.
The evidence would not permit of any finding that plaintiff was not at least equally in control with Parker.
Since, then, the one reason why the court granted a new trial did not affect the Bakery Company in any manner whatsoever, and since the other reason was a mistaken assumption on the part of the court that it had committed error, it follows that, as to the Bakery Company, the order granting a new trial should be reversed.
The order granting a new trial as to the defendant Michel's Bakery Company is reversed.