Henry v. Beck
| Decision Date | 11 April 1944 |
| Docket Number | 1232 |
| Citation | 154 Pa.Super. 585,36 A.2d 734 |
| Parties | Henry, Appellant, v. Beck et al |
| Court | Pennsylvania Superior Court |
Argued March 14, 1944
Appeal, No. 4, March T., 1944, from judgment of C. P. York Co., Oct. T., 1941, No. 109, in case of Wayne J. Henry v Paul R. Beck et al.
Trespass for property damages. Before Gross, P. J., specially presiding.
Verdict against defendants. Judgment entered n.o.v. for defendant Arcos Corporation. Plaintiff appealed.
John A. Hoober, for appellant.
Ralph F. Fisher, of Fisher, Ports & May, for appellee.
OPINION
A collision between two motor vehicles occurred on November 4, 1939, about midnight. Suit was brought by the plaintiff, Wayne J. Henry, against Paul R. Beck, Sue Hetrick, and Arcos Corporation (hereinafter called Arcos) to recover property damages. Summons was not served on Beck. The trial resulted in a verdict against the other two defendants. Motions for a new trial and judgment n. o. v. for Arcos were filed. The former was overruled and the latter sustained. This appeal followed.
Plaintiff's statement avers that he was the owner of a truck which was proceeding at a moderate rate of speed in a northerly direction on the Susquehanna Trail, a public highway, toward the city of York, when a Ford automobile travelling in the opposite direction, driven by Sue Hetrick "at the request and instance of Paul R. Beck" a passenger in the automobile, collided with it; that both Sue Hetrick and Beck were under the influence of liquor. There is an averment in the eleventh paragraph that at the time of the accident Beck was the authorized agent of Arcos and was engaged in and about the business of his agency and had with him in the automobile owned by Arcos and used by him his "agency supplies and equipment." There was no averment or evidence to show, however, that Sue Hetrick at the time of the collision was the agent, servant, or employer of Arcos or was engaged in its business or that she was operating the automobile with its knowledge and consent.
The affidavit of defense filed by Arcos denied the averments contained in paragraph 11 of plaintiff's statement except as to the ownership of the car which was admitted. It averred further that "Sue Hetrick was in no way the agent, servant or employee of the defendant, Arcos Corporation, and was in no way acting in and about the business of the said defendant." There was ample evidence that the Ford car was being negligently driven and no question of plaintiff's contributory negligence was raised.
The appellant states that the sole question involved in this appeal is: "Was the trial judge in error in taking from the jury the question of ownership of the automobile and the agency of the driver, under the testimony?"
The ownership being acknowledged, that matter is no longer in controversy. There remains the issue of agency. We recognize the rule that the presence of a defendant's name on a commercial vehicle raises a rebuttable presumption that the vehicle is owned by him and the driver is his agent acting within the scope of his employment: Hartig v. American Ice Company et al., 290 Pa. 21, 29, 137 A. 867; Double et ux. v. Myers, 305 Pa. 266, 270, 157 A. 610; Sefton v. Valley Dairy Company, 345 Pa. 324, 326, 28 A.2d 313. There was no averment or proof by the plaintiff that a name or sign appeared on this car. The learned court below in its opinion said that this was "a pleasure or passenger" type of car. The accuracy of that statement was not challenged. There was found in the car after the accident two brief cases on which the name Arcos appeared and scattered about on the floor were pamphlets, catalogues and other literature pertaining to its business, but that evidence was insufficient to establish Arcos' liability. No one testified for the plaintiff that any of this property belonged to, or had been in possession of, Sue Hetrick. Arcos admitted at the trial that Beck at the time of the accident was one of its salesmen who worked on a "salary commission" basis.
The presumption that Arcos was liable, relied upon by the plaintiff, does not in our judgment arise in this case. It does not fall within the rule announced in Sefton v. Valley Dairy Company, supra, Nor did the proof of ownership of this Ford car driven at the time of the collision by one not in Arcos' employment of itself raise a presumption that warranted submitting the case to the jury: Martin v. Lipschitz, 299 Pa. 211, 215, 216, 149 A. 168; Double et ux. v. Myers, supra; Readshaw et ux. v. Montgomery, 313 Pa. 206, 208, 169 A. 135; Warman v. Craig, 321 Pa. 481, 482, 483, 184 A. 757. This car as above noted bore no outward evidence of ownership or that its primary use was for business purposes. A different rule is applicable to show agency in those circumstances than when a name or other markings on the car show ownership: Stroman v. Penn Motors Corporation, 82 Pa.Super. 129, 131. Plaintiff was required, therefore, to produce evidence that the collision was due to the negligence of the owner's agent while furthering its business and acting within the scope of his employment: Loper et ux. v. P. G. Publishing Co., 312 Pa. 580, 583, 169 A. 374. They were vital elements which he failed to prove.
The appellant argues that Beck, agent for the defendant, was acting within the scope of his business; that an emergency arose which justified his...
To continue reading
Request your trial