Cicco v. Wiltshire

Leach, J., Plaintiffs’ claim is in trespass against the defendants for injuries in an automobile accident. According to plaintiffs’ state [559] ment, an automobile driven by David Wiltshire injured the infant plaintiff. The statement further avers that George Wiltshire was the owner of the said automobile being then driven by his son, David Wiltshire, the other defendant, who was operating the said automobile as a servant, employe, or agent of the said George Wiltshire, and in the business of the said George Wiltshire. Defendants except to the statement on the ground that the liability shown is several and not joint, and a joint action cannot be maintained. The liability of George Wiltshire, the father, in law is a different liability from that of David Wiltshire and legally the father could recover from the son for the damages caused by the latter’s negligence. Master and servant are not joint tortfeasors: Betcher v. McChesney, 255 Pa. 394; Hill v. American Stores Co., Inc., et al., 80 Pa. Superior Ct. 338. Where the pleadings assert a liability not joint but several and successive, the Joint Suit Act of June 29, 1923, P. L. 981, does not apply: Sabarof v. Florida East Coast Rwy. Co. et al., 92 Pa. Superior Ct. 286, 291. Now, February 16,1934, exceptions to plaintiffs’ statement are sustained and plaintiffs are allowed 15 days to amend their statement of claim. From 'William A. Wilcox, Scranton, Pa.