Loper v. P.G. Publishing Company

• Decision Date: 27 November 1933
• Docket Number: 170,169
• Citation: 169 A. 374,312 Pa. 580
• Parties: Loper et ux. v. P.G. Publishing Company, Appellant
• Court: Pennsylvania Supreme Court

169 A. 374

312 Pa. 580

Loper et ux. v. P.G. Publishing Company, Appellant

Nos. 169, 170

Supreme Court of Pennsylvania

November 27, 1933

Argued September 29, 1933

Appeals, Nos. 169 and 170, March T., 1933, by defendant, from judgments of C.P. Allegheny Co., Jan. T., 1931, No. 738, on verdicts for plaintiff, in case of Clyde L. Loper et ux. v P.G. Publishing Company. Judgments affirmed.

Trespass for personal injuries. Before SNEE, J.

The opinion of the Supreme Court states the facts.

Verdict and judgments for plaintiffs. Defendant appealed.

Error assigned, inter alia, was refusal of judgment n.o.v., quoting record.

Each of the judgments of the court below is affirmed.

John E Evans, Jr., with him Charles J. Margiotti and S. C. Pugliese, for appellant.

William H. Eckert, with him Smith, Buchanan, Scott & Gordon, for appellees.

Before FRAZER, C.J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.

OPINION

MR. JUSTICE SIMPSON:

Appellees, who are husband and wife, each recovered a verdict and judgment for injuries which they sustained when the automobile in which they were riding was run into by another operated by B. H. Bentley. The only question we are asked to decide is whether or not defendant is liable for the negligence of Bentley.

In their statement of claim appellees aver, inter alia, that "At the same time [i.e., the time of the collision] one B. H. Bentley, an agent and employee of the defendant, P.G. Publishing Company, was driving an automobile southwardly upon said Jacob Street, upon the business of said defendant, P.G. Publishing Company, and within the scope of his, said B. H. Bentley's, authority and employment," and then and there negligently ran into appellees' car, causing the injury of which complaint is made.

No affidavit of defense having been filed, those averments were offered and admitted in evidence at the trial without objection. Under such circumstances they are conclusively determined to be true for the purposes of the trial: Section 13 of the Practice Act of 1915, P.L. 483, 485; Farbo v. Caskey, 272 Pa. 573; Gurdus v. Phila. Nat. Bank, 273 Pa. 110. Indeed, no countervailing evidence was offered, appellant contenting itself with testimony tending to show that the automobile being driven by Bentley, belonged to him personally and not to defendant (which, standing alone, is an immaterial matter: Lotz v. Hanlon, 217 Pa. 339, 341), without even offering to prove that it was not then being used with his, defendant's knowledge and consent, upon his business, and within the scope of Bentley's authority and employment. The question at issue then resolves itself into this: Is an employer liable for the negligent acts of his employee, if this results in injury to a nonnegligent third party, while the employee is upon the business of the employer and within the scope of his, the employee's, authority and employment?

Unless the doctrine of respondeat superior is to be abolished, it is difficult to see how any other than an affirmative answer can be given to that question. In 2 Mechem on Agency (2d ed.) 1458, it is said: "It is sufficient to make the master responsible civiliter, if the wrongful act of the servant was committed in the business of the master, and within the scope of his employment and this, although the servant, in doing it, departed from the instructions of his master." In 1 Shearman & Redfield on the Law of Negligence (6th ed.), 347, it is said: "It is an old and thoroughly established doctrine that, where the relation of master and servant exists, the master is responsible to third persons for the damage caused by the wrongful acts or omissions of his servants, in the course of their employment as such." And again, page 357: "The test of the liability of a master for the torts of his servant is, whether the latter was at the time acting within the scope of his authority, and not whether the act was done in accordance with instructions." So, also, it is said in 2 Berry on Automobiles (6th ed.) 1073, and in note in 57 A.L.R. 739, 740.

The rule, as thus stated, finds expression in all our cases. See Farbo v. Caskey, supra; Lotz v. Hanlon, supra; Luckett v Reighard, 248 Pa. 24; Scheel v. Shaw, 252 Pa. 451; Maloy v. Rosenbaum Co., 260 Pa. 466; Beatty v. Firestone Tire & Rubber Co., 263 Pa. 271, 274; Treon v. Shipman, 275 Pa. 246; Reed v. Bennett, 276 Pa. 107; Zondler v. Foster Manufacturing & Supply Co., 277 Pa. 98; Gojkovic v. Wageley, 278 Pa. 488, 490; Goater v. Klotz, 279 Pa. 392; Thatcher v. Pierce, 281 Pa. 16; Laubach v. Colley, 283 Pa. 366; Martin v. Lipschitz, 299 Pa. 211; Schroeder v. Gulf Refining Co. (No. 1), 300 Pa. 397, 402-3; Double v. Myers, 305 Pa. 266; Klein v. Klein, 311 Pa. 217; Blaker v. Phila. Electric Co., 60 Pa.Super. 56, 59; Skvore v. Hager, 93 Pa.Super. 527, and Beaver v. George W. Boyd Co., 106 Pa.Super. 24. No case of ours varies therefrom,...