UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
December 3, 1942
GENERAL ACCIDENT, FIRE & LIFE ASSURANCE CORPORATION, LIMITED,
GOODYEAR TIRE & RUBBER CO.
On Petition for Rehearing.
A petition is filed for a rehearing on the ground that the jury's verdict in the Shapiro action established that the dangerous condition which caused the damage was brought about purely through the acts of the Alexander Dairy Company in overloading the truck. This is not so. The complaint in the state court action against Alexander Dairy Company not only alleged overloading, but also failure properly to inspect.
Both issues were submitted to the jury, whose verdict must have been rendered upon the theory that there was negligence in the inspection; otherwise a verdict in favor of the driver could not have been rendered under the judge's instructions, for he was certainly responsible if he drove an overloaded truck. It will be noticed that the judge remarked in his charge that: "The plaintiff says that when that notice was conveyed to the president of the company, the ordinary careful and prudent president of the company would have rectified that condition." He also carefully charged that the jury might find Alexander Dairy Company guilty of negligence and yet discharge the driver from liability, because this notice was given to the company, but not to the driver. The point referred to in the petition for rehearing was not overlooked and we hold that a rehearing should be denied.
© 1998 VersusLaw Inc.