Myers v. Strousse

• Decision Date: 21 November 1928
• Docket Number: 375-1927
• Citation: 94 Pa.Super. 440
• Parties: Myers v. Strousse, Appellant
• Court: Pennsylvania Superior Court

94 Pa.Super. 440

Myers v. Strousse, Appellant

No. 375-1927

Superior Court of Pennsylvania

November 21, 1928

Argued October 3, 1928

Appeal by defendant from judgment of M. C., Philadelphia County-1926, No. 814, in the case of Stephen H. Myers v. Rosa Strousse.

Trespass to recover damages to an automobile. Before Brown, J. without a jury.

The facts are stated in the opinion of the Superior Court.

Verdict for the plaintiff in the sum of $ 175.55 and judgment thereon. Defendant appealed.

Error assigned, among others, was the refusal of defendant's motion for judgment non obstante veredicto.

Louis Wagner, and with him Richard A. Smith and Wilbur F. Whittle for appellant, cited: Hannis v. Driver, 68 Pa.Super 548; Solomon v. Commonwealth Trust Company, 256 Pa 55.

H. Walter Geuther, and with him Walter J. Klenk, for appellee.

Before Porter, P. J., Henderson, Trexler, Keller, Linn, Gawthrop and Cunningham, JJ.

OPINION

Keller, J.

Plaintiff's automobile, while parked in front of his home, 1220 West Tioga Street, Philadelphia, about 9:40 o'clock in the evening, was run into by a drunken chauffeur driving defendant's automobile, and damaged. No one but the driver was in the defendant's car at the time of the accident. The ownership of the car, the negligence of the driver, and his general employment as chauffeur of the defendant were admitted, but it was denied that at the time of the accident he was engaged on the business of the owner or acting within the scope of his employment. As the defendant was not in the car at the time, the burden of proving that the driver was then engaged on her business or acting within the scope of his employment rested on the plaintiff: Curran v. Lorch, 243 Pa. 247, 249. The case was tried by a judge without a jury, and resulted in a finding for the plaintiff.

The driver, Leibrandt, was called by the plaintiff and was the only witness to prove his agency for the defendant at the time of the collision. His story was as follows: He left the defendant's home on Race Street about 6:00 o'clock in the evening, after telling her husband (now dead), that he was going to the garage where the car was kept (34th and Powelton Avenue), for 'parts.' What 'parts' he went after, he did not say. The garage did not have the parts, so he went to the West Philadelphia Buick Co., near 49th and Chestnut Streets, and found it closed. He then drove six and three-quarter miles northeastwardly to an unnamed accessories store at Broad and Tioga Streets --, not however, the North Philadelphia Buick Station --, and got the parts and put them in the car. Just why he drove that distance to that particular store, does not appear, unless it may be inferred from his subsequent conduct. After securing the parts, instead of taking the car to the garage at 34th Street and Powelton Avenue, he drove it to a restaurant in the neighborhood of 11th Street and Erie Avenue where he got something to eat and some liquor to drink. He had a couple of drinks and stayed there about an hour. He was asked the exact locality of the place, but said that was his business. Plaintiff's attorney objected to further questioning along that line and the court sustained the objection; saying he would 'eliminate' from the case, where the witness got the liquor and who was with him there. After having drunk sufficient liquor to intoxicate him, or 'dope' him, as he expressed it, he got into the car and while going west on Tioga Street collided with plaintiff's car, and then went to York Road and Germantown Avenue. What he did there or why he went there he did not say.

Defendant's liability rested on whether the evidence showed that the driver of her car was at the time of the collision engaged on her business or acting within the scope of his employment. If he was authorized by her to go to Broad and Tioga Streets for 'parts' for the car, or in good faith, in furtherance of her interests, went there after them, a slight deviation from his route in returning from the accessories store to the garage would not amount to a break in the employment such as would relieve her of liability for his negligence: Luckett v. Reighard, 248 Pa. 24, 31. Nor would a delay or deviation have that effect, if caused or reasonably accounted for by something happening to the driver in the course of his employment, such as a change of clothes after being drenched in a storm while fixing a tire on his employer's account: Blaker v. Phila. Electric Co., 60 Pa.Super. 56. But if after he completed the errand for his employer he took the car exclusively on his own business or for his own purposes, especially in a direction opposite to that where the garage was located, he would not then be engaged on her business or acting within the scope of his employment, and the defendant would not be liable for an accident happening because of his negligence while pursuing his own affairs: Hannis v. Driver, 68 Pa.Super. 548; Solomon v. Commonwealth Trust Co., 256 Pa. 55, 59; Scheel v. Shaw, 60 Pa.Super. 73; affirmed, 252 Pa. 451.

It was therefore, incumbent on the plaintiff, in order to charge the defendant with liability, to go into the facts and circumstances fully in order that a jury, or in this instance, the judge, might be able to tell within which class of decisions the case fell. As was said by the Supreme Court in Lotz v. Hanlon, 217 Pa. 339, 341, (opinion by Mr. Justice Stewart), where the evidence showed only that the plaintiff had been run down by an automobile in a frequented street in Philadelphia, after nightfall, and that the car was at the time occupied by four persons, one being the driver whose identity was established, and that the car was registered in the name of defendant as owner: " The jury had a right to be informed as to who these persons were, where they were going, upon what mission, at whose invitation they were occupying the automobile, and in what relation they stood to the defendant, so that they might intelligently determine the question of defendant's liability." But the circumstances so necessary to be proved in the present case, before it could be determined whether the defendant was liable or not, were not allowed to be...