Farbo v. Caskey

• Decision Date: 06 February 1922
• Docket Number: 97
• Citation: 272 Pa. 573,116 A. 543
• Parties: Farbo v. Caskey, Appellant
• Court: Pennsylvania Supreme Court

116 A. 543

272 Pa. 573

Farbo v. Caskey, Appellant

No. 97

Supreme Court of Pennsylvania

February 6, 1922

Argued January 9, 1922

Appeal, No. 97, Jan. T., 1922, by defendant, from judgment of C.P. No. 4, Phila. Co., Sept. T., 1920, No. 3544, on verdict for plaintiff, in case of Carmel Farbo v. Wesley M. Caskey. Reversed.

Trespass for personal injuries. Before FINLETTER, J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for plaintiff for $15,000. Defendant appealed.

Error assigned, among others, was refusal of defendant's motion for judgment n.o.v.

The judgment is reversed with a new venire.

Owen J Roberts, of Roberts, Montgomery & McKeehan, with him Robert T. McCracken, for appellant. -- There was neither proof nor presumption that the car was being driven on defendant's errand: Scheel v. Shaw, 252 Pa. 451; Luckett v Reighard, 248 Pa. 24; Lotz v. Hanlon, 217 Pa. 339; Curran v. Lorch, 243 Pa. 247; Solomon v. Trust Co., 256 Pa. 55; Dunmore v. Padden, 262 Pa. 436; Beatty v. Firestone Tire & Rubber Co., 263 Pa. 271; Maloy v. Rosenbaum Co., 260 Pa. 466; Moon v. Matthews, 227 Pa. 488; Hazzard v. Carstairs, 244 Pa. 122; Williams v. Floral Co., 252 Pa. 140; Haring v. Connell, 244 Pa. 439.

David Lavis, for appellee. -- Agency was admitted by failure to file an affidavit of defense: Act May 14, 1915, P.L. 483.

The law then presumes defendant was acting in his employer's business: Brown v. Winelander, 73 Pa.Super. 197; Moon v. Matthews, 227 Pa. 488; Hazzard v. Carstairs, 244 Pa. 122; Scheel v. Shaw, 252 Pa. 451, 461; Maloy v. Rosenbaum, 260 Pa. 466, 471.

The trial judge stated to the stenographer and the jury that the pleadings admitted the automobile was driven by defendant's servant. That was sufficient under Buehler v. Fashion Plate Co., 269 Pa. 428.

Before FRAZER, WALLING, SIMPSON, KEPHART and SCHAFFER, JJ.

OPINION

MR. JUSTICE SCHAFFER:

Defendant appeals from a judgment recovered in an action for damages for injuries received by plaintiff, who was struck by appellant's automobile.

Appellant contends there was no sufficient proof that the automobile, which admittedly belonged to defendant was being driven at the time of the accident on the owner's business or errand. The trial was allowed to proceed on the theory that this point was adequately covered by the undenied averments of plaintiff's declaration; although the trial judge seems to have had some misgivings as to whether the fact of the chauffeur acting within the scope of his alleged agency was sufficiently proven, as is shown by his statement in the charge that, in his opinion, it would have been better and safer pleading to have expressly averred that the motor car was being driven by defendant's agent or servant in and about his employer's business. The statement of claim does not specifically aver that the chauffeur was, as a matter of fact, engaged in the performance of service for defendant at the time of the accident, but left that open to inference from the averment of the agency. Answering a point of defendant, which raised the question, the court in its general charge instructed the jury, the averment that the automobile was driven by defendant's servant or agent, was a sufficient averment on which to base liability, if the driver was negligent. The difficulty, however, with this assumption is the fact that there was no evidence properly presented on the subject. Although neither the statement of claim nor any part of it had been offered in evidence, the trial judge treated certain of its averments as in the proofs and before the jury, saying to them that there was the admission in the written pleadings, because of the undenied averments in the statement of claim, that the automobile was driven by the defendant's servant or employee, and instructed them this averment was sufficient upon which to base liability if the driver was negligent. This was contrary to our ruling in Buehler v. United States Fashion Plate Co., 269 Pa. 428, where we pointed out that, "A fact averred in the statement of claim, and not specifically denied in the affidavit of defense, is an admitted fact. but does not become such for purposes of trial, unless put before the jury in one of three ways: (1) by the presiding judge stating to the official stenographer, in the presence of counsel, that certain facts, which he details and directs to be placed on the notes of trial, are averred in the statement, and not denied in the affidavit, and hence must be treated as admitted; or (2) by counsel directing to be placed on such notes certain detailed facts, which they admit; or (3) by offering in evidence specific parts of the statement of claim, with what counsel conceive to be the replies thereto contained in the affidavit of defense, and having the facts thus sought to be established placed on the notes of trial as admitted, because averred in the statement and not denied in the affidavit of defense." None of the methods indicated was pursued in this case, but, after the testimony was closed,...