Maloy v. Rosenbaum Co.

CourtUnited States State Supreme Court of Pennsylvania
Writing for the CourtMOSCHZISKER, J.
Citation260 Pa. 466,103 A. 882
Decision Date04 March 1918
PartiesMALOY v. ROSENBAUM CO.
103 A. 882
260 Pa. 466

MALOY
v.
ROSENBAUM CO.

Supreme Court of Pennsylvania.

March 4, 1918.


Appeal from Court of Common Pleas, Allegheny County.

Trespass to recover damages for personal injuries by John Maloy against the Rosenbaum Company. Verdict for plaintiff for $5,500, and judgment thereon, and defendant appeals. Affirmed.

Argued before BROWN, C. J., and POTTER, MOSCHZISKER, FRAZER, and WALLING, JJ.

William S. Moorhead, of Pittsburgh; for appellant. Richard W. Martin and Beatty, Magee & Martin, all of Pittsburgh, for appellee.

MOSCHZISKER, J. On Saturday evening, January 29, 1916, about 10 o'clock, plaintiff, while traversing a public highway in the city of Pittsburgh, was knocked down and injured by a delivery automobile belonging to defendant corporation. He sued in trespass, alleging negligence, and recovered a verdict, upon which judgment was entered. Defendant has appealed.

The appellant admits that the issues as to plaintiff's contributory negligence and the negligence of the driver of the automobile were both properly submitted to the jury; hut it contends that the evidence relied upon to show, at the time of the accident, the chauffeur was acting for the defendant, within the scope of his employment, was totally insufficient to that end. Appellant further contends that the testimony of the chauffeur, who was called as a witness by plaintiff, clearly proved that, at the time in question, he was pursuing his own purposes, and not the business of his employer; and, moreover, that uncontradicted testimony given by other witnesses, called by the defendant, was to the same effect. Therefore, appellant argues, it is entitled to judgment n. o. v. If, however, this court should not so decide, then appellant contends, in several assignments, that trial errors occurred which call for a reversal with a venire facias de novo.

During the production of plaintiff's case, defendant admitted that, on January 29, 1916, it owned and conducted a department store in the city of Pittsburgh; that, in connection therewith, it used automobiles to deliver merchandise; that the machine which struck plaintiff belonged to it; and, finally, that one Julius Solovitz was employed by it as a chauffeur. The defendant, however, refused to concede "that, at the time of the accident, the automobile in question was being operated by its servant in the course of his employment."

To meet the lastmentioned point, plaintiff proved that the particular machine involved in this case was one of a large number

103 A. 883

of business automobiles owned and used by defendant in the delivery of packages from the latter's store, and that this car, in common with others, had defendant's corporate name painted thereon; that Solovitz was one of the defendant's regularly employed drivers, whose duty it was to deliver merchandise to the former's customers; that, on the night here involved, the automobile in question left defendant's...

To continue reading

Request your trial
61 practice notes
  • Kaplan v. Loev
    • United States
    • United States State Supreme Court of Pennsylvania
    • 8 Octubre 1937
    ...is a matter for the discretion of the trial judge. Gallagher v. Philadelphia R. T. Co., 248 Pa. 304, 93 A. 1074; Maloy v. Rosenbaum Co., 260 Pa. 466, 103 A. 882; Thompson v. American Steel & Wire Co., 317 Pa. 7, 175 A. 541; Pusey's Estate, 321 Pa. 248, 184 A. 844. "The extent to which a wit......
  • O'donnell v. Philadelphia Record Co.
    • United States
    • United States State Supreme Court of Pennsylvania
    • 14 Abril 1947
    ...trial. This court should not permit two unjust verdicts to be accepted as the equivalent of one just verdict. In Maloy v. Rosenbaum Co., 260 Pa. 466 at page 472, 103 A. 882 at page 883, this court in an opinion by Justice Moschzisker said: ‘A grave responsibility rests upon the trial judge ......
  • Bell v. Yellow Cab Co.
    • United States
    • United States State Supreme Court of Pennsylvania
    • 25 Abril 1960
    ...v. Philadelphia Transportation Co., 366 Pa. 484, 77 A.2d 437; Elia v. Olszewski, 368 Pa. 578, 84 A.2d 188; Maloy v. Rosenbaum Co., 260 Pa. 466, 103 A. 882; Frank v. W. S. Losier & Co., Inc., 361 Pa. 272, 64 A.2d 829; Dinan v. Supreme Council C. M. B. A., 213 Pa. 489, 62 A. 1067. In such a c......
  • Hartig v. Am. Ice Co., Inc.
    • United States
    • United States State Supreme Court of Pennsylvania
    • 9 Mayo 1927
    ...at 137 A. 872 hand in its power to order a new trial. Hewitt v. Democratic Pub. Co., 260 Pa. 59, 61, 103 A. 499; Maloy v. Rosenbaum Co., 260 Pa. 466, 472, 103 A. 882. In the latter case, we "In cases of the class to which the one at bar belongs, the issue as to the capacity in which the cha......
  • Request a trial to view additional results
61 cases
  • Kaplan v. Loev
    • United States
    • United States State Supreme Court of Pennsylvania
    • 8 Octubre 1937
    ...is a matter for the discretion of the trial judge. Gallagher v. Philadelphia R. T. Co., 248 Pa. 304, 93 A. 1074; Maloy v. Rosenbaum Co., 260 Pa. 466, 103 A. 882; Thompson v. American Steel & Wire Co., 317 Pa. 7, 175 A. 541; Pusey's Estate, 321 Pa. 248, 184 A. 844. "The extent to wh......
  • O'donnell v. Philadelphia Record Co.
    • United States
    • United States State Supreme Court of Pennsylvania
    • 14 Abril 1947
    ...trial. This court should not permit two unjust verdicts to be accepted as the equivalent of one just verdict. In Maloy v. Rosenbaum Co., 260 Pa. 466 at page 472, 103 A. 882 at page 883, this court in an opinion by Justice Moschzisker said: ‘A grave responsibility rests upon the trial judge ......
  • Bell v. Yellow Cab Co.
    • United States
    • United States State Supreme Court of Pennsylvania
    • 25 Abril 1960
    ...v. Philadelphia Transportation Co., 366 Pa. 484, 77 A.2d 437; Elia v. Olszewski, 368 Pa. 578, 84 A.2d 188; Maloy v. Rosenbaum Co., 260 Pa. 466, 103 A. 882; Frank v. W. S. Losier & Co., Inc., 361 Pa. 272, 64 A.2d 829; Dinan v. Supreme Council C. M. B. A., 213 Pa. 489, 62 A. 1067. In such......
  • Hartig v. Am. Ice Co., Inc.
    • United States
    • United States State Supreme Court of Pennsylvania
    • 9 Mayo 1927
    ...at 137 A. 872 hand in its power to order a new trial. Hewitt v. Democratic Pub. Co., 260 Pa. 59, 61, 103 A. 499; Maloy v. Rosenbaum Co., 260 Pa. 466, 472, 103 A. 882. In the latter case, we "In cases of the class to which the one at bar belongs, the issue as to the capacity in which th......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT