Gozdonovic v. Pleasant Hills Realty Co.

• Court: Pennsylvania Supreme Court
• Writing for the Court: MR. JUSTICE HORACE STERN
• Citation: Gozdonovic v. Pleasant Hills Realty Co., 53 A.2d 73, 357 Pa. 23 (Pa. 1947)
• Decision Date: 26 May 1947
• Docket Number: 3123
• Parties: Gozdonovic v. Pleasant Hills Realty Company, Appellant, et al

53 A.2d 73

357 Pa. 23

Gozdonovic v. Pleasant Hills Realty Company, Appellant, et al

No. 3123

Supreme Court of Pennsylvania

May 26, 1947

Argued April 18, 1947

Appeal, No. 35, March T., 1947, from judgment of C.P Allegheny Co., Oct. T., 1941, No. 2429, in case of John Gozdonovic v. Pleasant Hills Realty Company et al. Judgment affirmed.

Trespass for personal injuries. Before ADAMS, J.

Verdict for plaintiff in the sum of $8,000 and judgment entered thereon. Defendant appealed.

Judgment affirmed.

Harold E. McCamey, with him H. A. Robinson and Dickie, Robinson & McCamey, for appellants.

J Thomas Hoffman, with him David S. Palkovitz, for appellee.

Before MAXEY, C.J; DREW, LINN, STERN, PATTERSON, STEARNE and JONES, JJ.

OPINION

MR. JUSTICE HORACE STERN

This is another in the lengthening line of cases ^* concerned with the question of an employer's liability for the negligent operation of a motor vehicle owned and maintained by an employe and used by him in furtherance of the employer's business.

* Wesolowski v. Hancock Insurance Co., 308 Pa. 117, 162 A. 166; Loper v. P.G. Publishing Co., 312 Pa. 580, 169 A. 374; Cusick v. Hutchison, 318 Pa. 316, 177 A. 749; Davis v. Pitt Publishing Co., 324 Pa. 449, 188 A. 291; Heinrich v. Pictorial Review Co., Inc., 326 Pa. 470, 192 A. 645; Barr v. Anchorage Inn, Inc., 328 Pa. 378, 196 A. 21; Holdsworth v. Pennsylvania Power & Light Co., 337 Pa. 235, 10 A.2d 412; Gittelman v. Hoover Co., 337 Pa. 242, 10 A.2d 411; Morris v. Ward, 345 Pa. 226, 26 A.2d 926; Sinclair v. Perma-Maid Co., Inc., 345 Pa. 280, 26 A.2d 924; Kadlecik v. Renault & Sons, Inc., 156 Pa.Super. 586, 40 A.2d 866.

One Nathan Kartub, who lived in McKeesport, answered a newspaper advertisement of the defendant company reading: "Salesman wanted to sell home sites. Car required." The company was in the real estate business with its office in Pittsburgh and was especially engaged in subdividing large tracts of land at Pleasant Hills into building lots and selling these to individual purchasers; Pleasant Hills is some seven or eight miles south of Pittsburgh. Kartub was employed on a commission basis. He used in the work his own automobile, for the operation of which he supplied the necessary gasoline, oil and garaging.

One morning, after Kartub had been in the company's employ for some 8 or 10 months, he drove his car from McKeesport to the company's office in order to obtain there some "leads" or cards containing names of "prospects". It was his intention to proceed later in the day to the home of a man and his wife near the borough of Elizabeth and take them out to the Pleasant Hills development; he had previously been negotiating with these persons to sell them a lot and had an appointment with them for one o'clock that afternoon. He now discovered however that when he left his house that morning he had forgotten to bring along certain cards with data concerning the man whom he was trying to interest, -- information in regard to the place where he worked, how much he earned, how much rent he was then paying, and the amount he would probably be willing to spend for the purchase of a new dwelling-place. Deeming it necessary to get these cards before traveling on to Elizabeth, he decided to stop first at his home. He arrived there about noon. He meant to enter the house only for a moment in order to obtain the cards and then proceed, first to Elizabeth, and thereafter, with his prospective customers, to the site of the development. He parked his automobile in the street on a very steep grade, but, instead of putting it into gear, he left it in neutral, probably failed to set the emergency brake properly, and neglected to turn the front wheels in toward the curb; he got out and locked the door of the car; at that moment it started down the hill and, with ever increasing speed, ran for a distance of two blocks and crashed at the foot of the decline into a laundry truck which was parked there, throwing out the driver, the present plaintiff, and causing him severe injuries. Plaintiff brought suit against both Kartub and Pleasant Hills Realty Company and obtained a verdict against them in the sum of $8,000. The present appeal is by Pleasant Hills Realty Company from the refusal of the court below to enter judgment in its favor n.o.v. or, in the alternative, to grant a new trial.

Appellant does not dispute that Kartub was negligent and thereby caused the accident, but it denies its own responsibility to plaintiff as Kartub's employer.

The principle determining an employer's liability under such circumstances has been clearly defined in our decisions. In Wesolowski v. Hancock Insurance Co., 308 Pa. 117, 120, 162 A. 166, 167, it was said: " To hold a master legally responsible for the act of a servant who is engaged in furthering his master's business and who while doing so negligently uses some instrumentality that carries him from place to place, it must either be proved that the master exercises actual or potential control over that instrumentality, or the use of the instrumentality at the time and place of the act complained of must be of such vital importance in furthering the business of the master that the latter's actual or potential control of it at that time and place may reasonably be inferred". In Gittelman v. Hoover Co., 337 Pa. 242, 244, 10 A.2d 411, 412, it was said that "unless the employee is directed by the employer to use his car for the purpose of traveling from place to place, or unless the circumstances are such that it is reasonably necessary for him so to travel instead of by train or other common carrier, the use of the car is not within the scope of the employment and the employer is not liable for injuries occasioned thereby to third persons."

The obvious import of the rule as thus stated -- the test of "vital importance" or "reasonable necessity" -- is that, if an employe uses his automobile in furtherance of his employer's business but primarily for his own convenience, such use being therefore a matter of indifference to the employer, the latter is not legally...