Martin v. Lipschitz

Decision Date27 January 1930
Docket Number284
PartiesMartin, Appellant, v. Lipschitz
CourtPennsylvania Supreme Court

Argued January 7, 1930

Appeal, No. 284, Jan. T., 1929, by plaintiff, from judgment of C.P. No. 2, Phila. Co., June T., 1925, No. 13591, for defendant on the whole record, in case of Margaret E. Martin v. Leon Lipschitz. Affirmed.

Trespass for death of plaintiff's husband. Before BARNETT, P.J. specially presiding.

The opinion of the Supreme Court states the facts.

Jury disagreed. Judgment for defendant on the whole record. Plaintiff appealed.

Error assigned was in entering judgment for defendant on the whole record, quoting motion for judgment and decree.

The judgment is affirmed.

Frank F. Truscott, of Bell, Trinkle, Truscott & Bell, with him William Brown, Jr., for appellant. -- The question as to whether or not an agent or servant is within the scope of his employment and on the master's business at any particular time is one for the jury to determine when a plaintiff has produced evidence from which an inference can be drawn that such agent or servant is within the scope of his employment and actually on his master's business: Fuller v. Coal Co., 268 Pa. 328; McDonald v. Pittsburgh, 278 Pa. 485; Parker v. Motor Car Co., 241 Pa. 461; Blaker v. Electric Co., 60 Pa.Super. 56; Zondler v Mfg. & Supply Co., 277 Pa. 98.

It is conflicts and contradictions, such as set forth above, that essentially make a case like the instant case under our law one for a jury to decide: Dregier v. Kramer, 292 Pa. 9; Zondler v. Mfg. & Supply Co., 277 Pa. 98.

H. Rook Goshorn, with him Frank R. Ambler and Harry S. Ambler, Jr., for appellee. -- Defendant's motion for judgment on the whole record was properly granted, because plaintiff did not sustain the burden which devolved on her, of proving that at the time of the accident the driver of the car was acting within the scope of his employment, but, on the contrary, her own evidence showed that he was not so acting: Lotz v. Hanlon, 217 Pa. 339; Scheel v. Shaw, 252 Pa. 451, 60 Pa.Super. 73; Solomon v. Trust Co., 256 Pa. 55; Beatty v. Tire & Rubber Co., 263 Pa. 271; Goater v. Klotz, 279 Pa. 392; Orluske v. Motors Co., 286 Pa. 170; Buck v. Cab Co., 75 Pa.Super. 440; Myers v. Strousse, 94 Pa.Super. 440.

Before FRAZER, WALLING, SIMPSON, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE WALLING:

At about nine o'clock on the morning of May 1, 1925, plaintiff's husband, Charles A. Martin, while walking across Twenty-second Street at Cumberland Street, Philadelphia, was killed by Leon Lipschitz's automobile, northbound in the former street. The proof warranted a finding of negligence on part of the driver, Frank Jones, and this suit therefore was brought against Lipschitz, the controlling question being whether there was any submissible evidence that Jones was at the time engaged in the owner's business. At the trial the jury disagreed, and, later, the court in banc entered judgment for the defendant on the whole record, under the Act of April 20, 1911, P.L. 70, and plaintiff has appealed.

We must, therefore, assume the truth of the evidence for plaintiff and every inference in her favor that may properly be drawn therefrom. Even so doing, we are not convinced that the judgment was improperly entered. This car was kept by the defendant for his private use and the burden was on the plaintiff of showing that at the time of the accident it was being driven for him. Neither the defendant nor any of his family was in the car and the sole evidence tending to show his liability, aside from ownership of the car, was that of a police officer who talked with the defendant on the evening of the accident and who testified: "Mr. Lipschitz told me he was the owner of the car, he had given this man, who was in his employ at that time as chauffeur, he had taken him to New York City. The chauffeur brought him back; that night it was raining and the car got muddy. When he came back to his place of business at 3004 North Twenty-second Street he told the chauffeur to take that car to the garage, have it washed and have that car brought back to him in the morning." The officer drew the conclusion that the accident occurred when Jones was delivering the car in the morning, but the defendant did not so state. The officer's testimony lacks the necessary details to fasten liability on the defendant. It fails to show where the garage was located or that the car was on the street between the garage and the defendant's home, or that in fact it was being driven from one to the other. Something more definite must be shown than that Jones was chauffeur for defendant and was driving his car north on Twenty-second Street. See Lotz v. Hudson, 217 Pa. 339, 341. The ownership of the car raises no presumption of liability. The mere fact that the servant was afforded the facilities causing the injury, through his relation to the master, without more, is of no moment. See Sherman & Redfield on Negligence (6th ed.), volume 1, section 147.

Furthermore while not considered in arriving at our decision, the situation is clarified by the uncontradicted evidence for the defense by which it appears Jones was employed as car washer in a public garage located near 4600 North Fifteenth Street, known as the Bellefield garage; that defendant had his home and store at 3004 North Twenty-second Street, where he kept his car in a private garage; that Jones had occasionally acted as his chauffeur and washed the car there; that on their return from New York, where Jones had driven the car for defendant, a day or two before the accident, he had requested permission to take the car to the Bellefield garage where he had better facilities for washing it and had promised to bring it back in the morning. In place of so doing, however, Jones, having worked there during the night, as was his custom, took the car at about seven o'clock a.m. and for a purpose of his own drove onto Oran Street to the home of Allen Hartison, then drove Hartison on to Allegheny Avenue where the latter took a trolley car. Then, having picked up an acquaintance named Alexander, Jones drove to his own home near 1800 Ridge Avenue where he ate breakfast. Then, accompanied by Alexander, he drove to a speakeasy at 2125 Stewart Street where they drank whiskey and at about nine o'clock Jones, while driving...

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