Moon v. Matthews

• Citation: 227 Pa. 488,76 A. 219
• Decision Date: 21 March 1910
• Docket Number: 272
• Parties: Moon v. Matthews, Appellant
• Court: Pennsylvania Supreme Court

76 A. 219

227 Pa. 488

Moon v. Matthews, Appellant

No. 272

Supreme Court of Pennsylvania

March 21, 1910

Argued February 7, 1910

Appeal, No. 272, Jan. T., 1909, by defendant, from judgment of C.B. Bucks Co., May T., 1907, No. 9, on verdict for plaintiff in case of Alfred H. Moon v. Charles J. Matthews. Affirmed.

Trespass to recover damages for personal injuries. Before STOUT, J.

The facts appear in the opinion of the Supreme Court.

Verdict and judgment for plaintiff for $5,166. Defendant appealed.

Errors assigned were (1) in refusing binding instructions for defendant; and (2) in refusing to enter judgment for defendant non obstante veredicto.

The assignments of error are overruled, and the judgment is affirmed.

John G Johnson, with him J. Hibbs Buckman and William C. Ryan, for appellant. -- The plaintiff must show not only that the person in charge of the car was defendant's servant but that at the time he was engaged on the master's business Lotz v. Hanlon, 217 Pa. 339; Sarver v. Mitchell, 35 Pa.Super. 69; Durham v. Strauss, 38 Pa.Super. 620; Quigley v. Thompson, 211 Pa. 107; Guille v. Campbell, 200 Pa. 119; Rudgeair v. Reading Traction Co., 180 Pa. 333; Murphey v. Phila. Rapid Transit Co., 30 Pa.Super. 87.

Harmon Yerkes, of Yerkes, Ross & Ross, with him Gilkeson & James, for appellee. -- If a wrongful act is committed in the course of the master's business the master is liable, notwithstanding such act may have been in direct violation of his instructions: McClung v. Dearborne, 134 Pa. 396; Phila., etc., R.R. Co. v. Brannen, 17 W.N.C. 227; Penna. R.R. Co. v. Vandiver, 42 Pa. 365; Ahern v. Melvin, 21 Pa.Super. 462; Shaw v. Reed, 9 W. & S. 72.

The question whether a servant was acting within the scope of his employment when he committed a negligent act, is a question of fact for the jury: Guinney v. Hand, 153 Pa. 404; Simmons v. Penna. R.R. Co., 199 Pa. 232; Hestonville Pass. R.R. Co. v. Grey, 1 Walk. 513.

Before FELL, C.J., BROWN, POTTER, ELKIN and MOSCHZISKER, JJ.

OPINION

MR. JUSTICE POTTER:

In this action the plaintiff sought to recover damages for injuries received in a collision between a buggy in which he was riding and an automobile owned by the defendant, and operated by his chauffeur. The accident happened upon a dark night. Plaintiff was driving along the road, when he saw and heard the automobile approaching. He turned as far as possible to the right side of the road to let it pass, but, according to his testimony, the automobile came directly towards him, struck his buggy, and he either jumped or was thrown into the road, and severely injured. It was admitted that the automobile was owned by defendant and that the chauffeur was employed by him to care for and operate that particular vehicle. The trial judge submitted to the jury for their determination, as questions of fact, whether the accident was caused by the negligence of the chauffeur, whether the plaintiff was guilty of contributory negligence, and whether at the time of the accident the chauffeur was acting within the scope of his employment, and was upon his master's business. Upon all these matters, the jury found in favor of the plaintiff.

The first and second assignments of error raise the question whether the court should not have taken the case from the jury and directed a verdict for defendant, or entered judgment non obstante veredicto in his favor.

Counsel for appellant maintain that at the time of the accident the chauffeur was not engaged in the master's business, and was acting in disobedience of his orders. This claim is based upon evidence offered by the defendant, tending to show that he had forbidden the chauffeur to take out the car unless the defendant was with it, and that upon the night of the accident the car was taken out by the chauffeur, under the direction of the sister of the defendant, who made her home with defendant, and was regarded as a member of the family. It was not pretended that the chauffeur was acting in any way upon his own business. Miss Alice Matthews testified that she made up her party for an automobile ride, expecting to get her brother's consent when he came home, but as he was late in arriving she ordered the chauffeur to take out the automobile upon her own responsibility. It also appears from the evidence that upon the morning after the accident, defendant and his sister called upon plaintiff, discussed the accident with him and tried to arrange a settlement. Defendant at that time asked plaintiff to send him his doctor's bill and the bills for repairing the carriage and all other repairs. Neither then nor at any time before suit was brought did it appear that the defendant disclaimed liability upon the ground that the chauffeur was not acting for the master at the time of the accident. It seems to have been set up for the first time, as a matter of defense, at the trial. It has been held that the facts and circumstances at the time of an accident may raise a presumption that the regular chauffeur employed by the owner and in charge, was acting within the scope of his employment. In Long v. Nute, 123 Mo.App. 204, BLAND, J., said (p. 209): "Where a servant, who is employed for the special purpose of operating an automobile for the master, is found operating it in the usual manner such machines are operated, the presumption naturally arises that he is running the machine in the master's service. If he is not so running it, this fact is peculiarly within the knowledge of the master, and the burden is on him to overthrow this presumption by evidence which the law presumes he is in possession of."

In the case of Guinney v. Hand, 153 Pa. 404, it appeared that the plaintiff was injured by a beer wagon belonging to defendants, and in charge of a driver employed by them. Judgment on a verdict for plaintiff was affirmed, Chief Justice STERRETT saying (p. 410): "The...