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Loughney v. Thomas

Decided: October 2, 1936.

THRASILLA LOUGHNEY, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF EDWARD B. LOUGHNEY, DECEASED, PLAINTIFF-APPELLANT,
v.
HARRY J. THOMAS AND JOHN THOMAS, INDIVIDUALLY, AND JOHN THOMAS ET AL., PARTNERS TRADING AS THOMAS BROTHERS, DEFENDANTS-RESPONDENTS



On appeal from the Supreme Court.

For the appellant, Earl A. Merrill.

For the respondents, Charles S. Gray (Harold G. Price, of counsel).

Campbell

The opinion of the court was delivered by

CAMPBELL, CHANCELLOR. A very brief recital of the facts is all that is necessary. A motor truck registered in the name of the defendant Harry Thomas, of Wilkes-Barre, Pennsylvania, as owner, bearing the inscription "Thomas Brothers" and operated by the defendant John J. Thomas, crashed into the rear end of another motor truck owned by Virginia M. Yanavok which was parked on the side of the state highway, route 6, near Belvidere, in Warren county. This truck was operated by and was in the control of one Rolph, who, at the time, was in the employ of John Yanavok and engaged in and about the business of the latter.

Edward B. Loughney, plaintiff-appellant's decedent, a resident of Wilkes-Barre, who was seated beside John Thomas in the cab of the Thomas truck, died as the result of injuries received in the collision.

Bridget Loughney, the mother of Edward B. Loughney,

caused letters of administration, ad prosequendum, to be issued to her by the surrogate of Morris county and in such capacity brought suit under the "Death act" against Virginia M. Yanavok, John Yanavok, Rudolph Rolph, Harry J. Thomas and John Thomas, individually, and John Thomas, Harry J. Thomas and Joseph Thomas, partners, trading as Thomas Brothers. The action was brought in the Supreme Court and the venue laid in Morris county (the defendants Yanavok and Rolph being residents of that county) and the cause was tried at the Morris Circuit.

The trial court directed a verdict against the plaintiff and in favor of the defendants Harry J. Thomas and John Thomas, as individuals, and they and Joseph Thomas as Thomas Brothers, and also in favor of Virginia M. Yanavok, and submitted the cause to the jury as to John Yanavok and Rudolph Rolph, as to whom that body returned a favorable verdict of no cause of action.

From the judgment, upon the directed verdict in favor of the defendants Thomas and Thomas Brothers, the plaintiff below appeals.

Since the trial of the cause Bridget Loughney, the original plaintiff, has died and the present appellant has been appointed by the surrogate of Morris county, as administratrix ad prose-quendum of Edward B. Loughney, deceased, and as such has taken and prosecuted this appeal.

There seems to be but three questions raised. The first is that the trial court erred in directing a verdict in favor of John Thomas, ...


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