Young v. Wilky Carrier Corporation , 150 F.2d 764 ( 1945 )

FAKE, District Judge.

This case was tried by the court on stipulation waiving the right to a trial by jury. The judge found on ample evidence that there was negligence in the case and adjudicated damages accordingly. No issue however as to negligence per se is involved on this appeal. The errors alleged are limited to two underlying issues:

First: It appears that one Earl L. Welty had been served and brought in as a party defendant with the Wilky Carrier Corporation and before the commencement of the trial, Judge Kirkpatrick signed an order dismissing the suit as to Welty. This action of the judge is relied upon as error.

It appears from the record made before Judge Kirkpatrick that plaintiffs asserted their inability to prove a case against Welty either severally, or jointly in connection with the Wilky Carrier Corporation, and they therefore submitted to a voluntary dismissal as to Welty. Counsel for defendant, Wilky Carrier Corporation, objected on the record to the dismissal however. His position is that under the Pennsylvania law providing for contribution between defendants in negligence cases, he had a right to detain Welty in the case until all the evidence was in and the case went to the court for adjudication on the facts. It appears to us under this approach that the dismissal of Welty resided in the sound discretion of the court under Rule 41(a) (2), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. We find no abuse of that discretion on the record here. We find no error in the action of Judge Kirkpatrick.

Second: The case went to trial before Judge Kalodner and on the evidence before him he spelled out liability against the remaining defendant on the case law of Pennsylvania. He found as conclusions of fact that the offending vehicle was the property of Welty; that defendant was in possession thereof as lessee; that the driver Gramlich was the employee of defendant at the time of the accident; that the vehicle had lettered thereon the names “Wilky Carrier Corp.” and “Earl L. Welty”; and that Gramlich was in and about the business of defendant at the time of the accident. If these conclusions stand there is no error in the result below.

Two of the conclusions above mentioned are based upon the appearance of the defendant’s name on the vehicle, to wit, the conclusion that defendant was the “owner” as stated in the opinion, which is taken to mean lessee in exclusive possession, and the conclusion that the vehicle was on defendant’s business at the time the injuries were sustained.

The learned trial judge has made a painstaking study of the law of Pennsylvania relating to the presumptions arising under the law of the state pertaining to the lettering on the vehicle. His opinion fully discloses the process of reasoning by which he reached his conclusion. We agree with him in the reasoning and in the result. Further consideration of the subject here would be but to repeat his thoughts in different phraseology.

As to each of his remaining conclusions of fact, we find he was fully justified on the evidence before him.

The judgment below is affirmed.