Curran v. Lorch

• Citation: 243 Pa. 247,90 A. 62
• Decision Date: 05 January 1914
• Docket Number: 133
• Parties: Curran v. Lorch, Appellant
• Court: United States State Supreme Court of Pennsylvania

90 A. 62

243 Pa. 247

Curran v. Lorch, Appellant

No. 133

Supreme Court of Pennsylvania

January 5, 1914

Argued October 24, 1913

Appeal, No. 133, Oct. T., 1913, by defendant, from judgment of C.P. Allegheny Co., Nov. T., 1910, No. 205, on verdict for plaintiff in case of Edward Curran v. Louis Lorch. Reversed.

Trespass to recover damages for personal injuries. Before FRAZER, P.J.

The opinion of the Supreme Court states the facts.

Verdict for plaintiff for $4,250 and judgment thereon. Defendant appealed.

Error assigned, among others, was the first which was as follows The court erred in refusing the defendant's motion to withdraw a juror and continue the case which motion occurred in the course of taking testimony as follows:

By Mr Marshall: "Q. You built a garage up at your house, didn't you? A. I think so."

"Q. And when did you build that garage, in August? A. I don't know."

"Q. And you brought him up there and kept him up there for two weeks after the garage was finished in August? A. I don't know."

"Q. And you did send him to Mr. Dickie's office with Mr. Dowler? A. Yes, sir."

"Q. And you said, 'I don't care; I am insured. Take him down to the insurance company?'"

By Mr. Dickie: "Objected to."

By the Court: "I do not think it makes any difference whether he was insured or not."

By Mr. Marshall: "Well, if your honor does not think so, I will not press it."

By Mr. Dickie: "I move that a juror be withdrawn and the case continued."

"Motion refused."

"To which ruling of the court counsel for defendant requests an exception."

"Exception allowed and bill sealed."

Judgment reversed and a venire facias denovo awarded.

J. Roy Dickie, with him William W. Wishart, for appellant.

Meredith R. Marshall, with him Rody P. Marshall, for appellee.

Before BROWN, MESTREZAT, POTTER, ELKIN and MOSCHZISKER, JJ.

OPINION

MR. JUSTICE ELKIN

This is an action of trespass to recover damages for personal injuries resulting from the alleged negligent operation of an automobile. Appellant was the owner and was not present at the time of the accident. The car was driven by the chauffeur when the injuries were sustained. In such a case the burden is on plaintiff to show that the chauffeur was the servant of the owner of the car, and that at the time of the accident he was engaged on the business of the owner, or acting within the scope of his employment. The rule was very clearly stated by our Brother STEWART in Lotz v. Hanlon, 217 Pa 339. Appellant denied having any knowledge of the fact that his chauffeur had taken his automobile out of the garage on the night of the accident, or that he had any authority to do so. The defense on this branch of the case was that the chauffeur took the automobile without permission and was using it not on the business of the owner but for the pleasure of the driver. This would have been a perfectly good defense, if the facts were uncontroverted. On the other hand plaintiff called the chauffeur as a witness and he testified to a state of facts, which if believed, would warrant the jury in finding that after cleaning and putting the car in order on the evening of the accident he was testing it for use the following day. This testimony was introduced to show that the chauffeur was acting within the scope of his employment. There was a conflict of testimony on this material point, and hence it was for...