Crouse v. Lubin

• Decision Date: 25 February 1918
• Docket Number: 144
• Citation: Crouse v. Lubin, 260 Pa. 329, 103 A. 725 (Pa. 1918)
• Parties: Crouse et al. v. Lubin, Appellant
• Court: Pennsylvania Supreme Court

103 A. 725

260 Pa. 329

Crouse et al. v. Lubin, Appellant

No. 144

Supreme Court of Pennsylvania

February 25, 1918

Argued January 10, 1918

Appeal, No. 144, Jan. T., 1917, by defendant, from judgment of C.P. No. 2, Philadelphia Co., June T., 1915, No. 3596, on verdict for plaintiffs, in case of Mary J. Crouse and William J. Crouse v. Annie Lubin. Affirmed.

Trespass to recover damages for personal injuries. Before BARRATT P.J.

The opinion of the Supreme Court states the facts.

Verdict for plaintiff, Mary J. Crouse, for $2,000, and for plaintiff William J. Crouse, for $350 and judgment thereon. Defendant appealed.

Errors assigned were instructions to the jury, in refusing to direct a verdict for defendant and in refusing to enter judgment for defendant n.o.v.

The assignments of error are overruled and the judgment is affirmed.

W. W. Smithers, for appellant. -- There was no element to sustain the doctrine of respondeat superior: Wray v. Evans, 80 Pa. 102; McMahen v. White, 30 Pa.Super. 169; Jimmo v. Frick, 255 Pa. 353; McCullough v. Shoneman, 105 Pa. 169.

It appearing from the evidence that the defendant was a feme covert and the record showing the husband not joined, the verdict cannot be sustained: Franklin's App., 115 Pa. 534; Wheeler & Wilson Mfg. Co. v. Heil, 115 Pa. 487; Quick v. Miller, 103 Pa. 67; Hess v. Heft, 3 Pa.Super. 582.

Victor Frey, with him Augustus T. Ashton, for appellees. -- The chauffeur of the car was the servant of the appellant; for his negligence she must answer: Moon v. Matthews, 227 Pa. 488; O'Malley v. Public Ledger Co., 257 Pa. 17; Birch v. Abercrombie, 74 Wash. 486; Bowling v. Roberts, 235 Pa. 89; Jimmo v. Frick, 255 Pa. 353; Kurtz v. Tourison, 241 Pa. 425.

The chauffeur was defendant's agent for the driving of the car: Denison v. McNorton, 228 F. 401; Smith v. Machesney, 238 Pa. 538.

Before MESTREZAT, POTTER, STEWART, FRAZER and WALLING, JJ.

OPINION

MR. JUSTICE WALLING:

This is an action by husband and wife to recover damages for personal injuries to the latter, resulting from a collision of automobiles. On February 28, 1915, the plaintiff, Mary J. Crouse, was riding west on Somerset street, Philadelphia, in a Ford car, with which defendant's Packard limousine collided at Twentieth street, causing plaintiff's injuries. The jury found that the accident resulted from the negligence of the chauffeur of defendant's car; and the question here is as to the owner's liability therefor. Defendant resided with her husband and mother in Philadelphia; she also lived more or less at Betzwood and at Atlantic City. She had other cars for her personal use and kept the Packard for the use and pleasure of her husband and mother, Mrs. Abram, especially for the latter, who was authorized to use it whenever she desired, without limit. Defendant had no regular chauffeur for this car, but it was kept at convenient garages and sometimes at the garage of the Lubin Manufacturing Company, of which her husband was the president. It was there on the day above mentioned, and, in response to the request of defendant's mother, the foreman of that garage sent her the car, as he had done on previous occasions, in charge of one George B. Day as chauffeur. The accident happened while the car was being returned to the garage. Mr. Day was an employee of said company and his compensation for driving this car was paid by it in connection with his regular salary. The accident happened on Sunday and the only service he performed that day was as chauffeur of this car. While doing that he was subject to the direction and control of defendant's mother and not of the company. The Lubin Manufacturing Company was not engaged in any business connected with automobiles and seems to have given this car storage as a matter of accommodation. Defendant offered no evidence and there was no controversy as to the facts on this branch of the case. Defendant had never directly employed Mr. Day, and at the time of the accident she was temporarily residing at Atlantic City. The trial judge instructed the jury that defendant was liable for the acts of the chauffeur, and later entered judgment for plaintiffs on the verdict. Defendant appealed.

We find no error in the record. Defendant made it her business to furnish a car for the comfort and pleasure of her mother, and a chauffeur was necessary in order to obtain the benefit thus conferred. The right to have a driver was implied in the right to use the car. In employing or using Mr. Day as a chauffeur, the mother was acting within the scope of her authority and in reality representing the daughter. Mrs. Abram was not a bailee of the car. Her jurisdiction was limited to the tight to use it as a member of the family. A like authority from a father to his daughter would not render her a bailee of the car, for her possession would be his possession. Mrs. Abram did not borrow or hire the car from defendant.

The Lubin Manufacturing Company's servant drove the car in question but while so doing he was in defendant's car and subject to the direction and control of its owner or occupants. It was no part of the company's business to take Mrs. Abram out riding, and Mr. Day while...