Kirk v. Showell, Fryer & Co., Inc.

• Decision Date: 19 March 1923
• Docket Number: 63
• Citation: 120 A. 670,276 Pa. 587
• Parties: Kirk, Appellant, v. Showell, Fryer & Co., Inc
• Court: Pennsylvania Supreme Court

120 A. 670

276 Pa. 587

Kirk, Appellant, v. Showell, Fryer & Co., Inc

No. 63

Supreme Court of Pennsylvania

March 19, 1923

Argued January 31, 1923

Appeal, No. 63, Jan. T., 1923, by plaintiff, from order of C.P. No. 1, Phila. Co., Dec. T., 1920, No. 8425, refusing to take off nonsuit, in case of Charles W. Kirk v. Showell Fryer & Co., Inc. Reversed.

Trespass for personal injuries. Before PATTERSON, J.

The opinion of the Supreme Court states the facts.

Nonsuit. Refusal to take off. Plaintiff appealed.

Errors assigned were order and rulings on evidence, quoting record.

The third assignment of error is sustained, and the judgment is reversed with a procedendo.

A. W Horton, for appellant. -- The averments of the statement should have been admitted: Fulton Farmers Assn. v. Bomberger, 262 Pa. 43; Parry v. First Nat. Bank of Lansford, 270 Pa. 556; Herron v. Church, 46 Pa. C.C.R. 287.

The servant's authority to procure assistance or help while in the pursuit of his master's business may be implied: Byrne v. Brewing Co., 259 Pa. 357; Jones v. Pa. C. & C. Co., 255 Pa. 339; Madara v. R.R., 192 Pa. 542; Quinn v. R.R., 7 Pa.Super. 19.

Whether an act performed by a servant is within his authority is determined by the fact that the act was done in furtherance of the master's business: Hughes v. Storage Co., 269 Pa. 222, 224.

Harry S. Ambler, Jr., with him Frank S. Ambler and H. Rook Goshorn, for appellee. -- Defendant's chauffeur had no authority to employ assistance on behalf of defendant: Hughes v. Storage Co., 269 Pa. 222; Wind v. Steiert, 71 Pa.Super. 194; Connor v. R.R., 24 Pa.Super. 214; Duff v. R.R., 91 Pa. 458; Durham v. Strauss, 38 Pa.Super. 620; Byrne v. Brewing Co., 259 Pa. 357.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE SADLER:

Plaintiff was seriously injured by an automobile of the defendant company. It had been placed in charge of Gibboni, a regular employee, and, on the day in question, he had been directed to deliver a bulky package, containing a hammock, to the office of the American Railway Express Company, secure a shipping receipt, and return. No direct authority had been given him to obtain assistance in performing this service, nor was he permitted generally to allow others to ride in the motor while engaged in his employer's business. On this occasion, he did take with him one Damiano, and together they loaded the parcel, and removed the same to the wharf of the carrier. The driver, with the aid of his friend, carried the hammock, which was heavy, from the truck, and placed it on the platform. The former then awaited the signing of a receipt by the agent of the express company, but, by reason of the presence of many shippers, was delayed in securing the necessary acknowledgment. While so engaged, the motor stood at the landing place, Damiano sitting therein. A policeman directed that the truck be moved so that the congestion of traffic could be relieved. This information was given the driver, who told his companion to obey the order given, but to use care in so doing. Damiano turned on the power, but was unable to control the machine, and caused the injury now in suit. This action was brought for the recovery of damages from the owner of the vehicle, who defends on the ground that the third party was not employed by it, and therefore no responsibility attaches for his negligent acts. After hearing the evidence, a compulsory nonsuit was entered, which the court below refused to set aside; hence this appeal.

The first complaint of appellant is based on the proposed offer of portions of the statement of claim admitted to be true, or not sufficiently controverted in the affidavit of defense. Particular objection is raised to the refusal to admit paragraph seven, which averred: "The work of loading, unloading and operating said motor vehicle was of such a character as to require two men, and for a long time the defendant's agent, servant and employee had been in the habit of securing the assistance of James Damiano to help him in the discharge of his duties in and about the defendant's business." To this averment, the answer was limited to the word, "denied," though in subsequent paragraphs the agency of Damiano was expressly contradicted. This raises the question of the sufficiency of the affidavit of defense as to the particular statements of fact referred to. By section 6 of the Practice Act of May 14, 1915, P.L. 483, it is provided: "Every allegation of fact in the plaintiff's statement of claim, . . . if not denied specifically or by necessary implication in the affidavit of defense, . . . shall be taken to be admitted, . . . except as provided in section thirteen," and in other specific exceptions having no relevancy here. It has, therefore, been frequently held in actions of assumpsit that a mere denial of the averments in the statement is insufficient and, without more, the relevant facts set up are to be taken as true: Buehler v. United States Fashion Plate Co., 269 Pa. 428; Parry v. First Nat. Bank of Lansford, 270 Pa. 556; Fulton Farmers Assn. v. Bomberger, 262 Pa. 43.

This however, is an action of trespass, and the effect of the failure to properly contradict the statements of plaintiff is defined by section 13 of the same act. It is provided, that the same particularity shall be had there in the case of an affidavit of defense, as required by section six, in assumpsit, but if no affidavit of defense is filed, or if that set up is insufficient, then the extent of the admission, which shall be considered to follow, is limited thus: "In actions of trespass the averments, in the statement, of the person by whom the act was committed, the agency or employment of such person, the ownership or possession of the vehicle, machinery, property or instrumentality involved, and all similar averments, if not...