Orluske v. Nash Pittsburgh Motors Co.

• Decision Date: 12 April 1926
• Docket Number: 38
• Citation: 286 Pa. 170,133 A. 148
• Parties: Orluske, Appellant, v. Nash Pittsburgh Motors Co
• Court: Pennsylvania Supreme Court

133 A. 148

286 Pa. 170

Orluske, Appellant, v. Nash Pittsburgh Motors Co

No. 38

Supreme Court of Pennsylvania

April 12, 1926

Argued March 16, 1926

Appeal, No. 38, March T., 1926, by plaintiff, from judgment of C.P. Allegheny Co., April T., 1924, No. 3203, for defendant n.o.v., in case of Edward Orluske v. Nash Pittsburgh Motors Co. Affirmed.

Trespass for personal injuries. Before SWEARINGEN, J.

The opinion of the Supreme Court states the facts.

Verdict for plaintiff for $4,759.70. Subsequently the court entered judgment for defendant n.o.v.

Error assigned was judgment for defendant n.o.v., quoting record.

The judgment is affirmed.

Wilbur F. Galbraith, of Cunningham, Galbraith & Dickson, with him Dan T. R. Dickson, for appellant. -- The case was for the jury: Haring v. Connell, 244 Pa. 439; Herrington v. Hill, 60 Pa.Super. 202; Theil v. Wolfe, 77 Pa.Super. 312; Stroman v. Motors Corp., 82 Pa.Super 129; Sieber v. Russ Bros., 276 Pa. 340; Gojkovic v. Wageley, 278 Pa. 488; Reed v. Bennett, 281 Pa. 332; Jones v. Quaker City Cab Co., 84 Pa.Super 80; Holzheimer v. Lit Bros., 262 Pa. 150.

If declarations are made by an agent while carrying out his employment, which declarations are against the interest of the principal, then such are admissible in evidence primarily under the law of principal and agent and not a matter of the law of evidence at all: Bradley v. Tel. & Tel. Co., 54 Pa.Super. 388; Treon v. Shipman, 275 Pa. 246; Marcus v. Gimbel Bros., 231 Pa. 200.

Drayton Heard, with him Sterrett & Acheson, for appellee. -- The burden was always on plaintiff to prove that the automobile, which collided with him, was operated, at the time, by defendant's servant, acting within the scope of his employment and about its business: Farbo v. Caskey, 272 Pa. 573; Seiber v. Russ Ice Cream Co., 276 Pa. 340.

The declarations of the driver were not admissible: McGrath v. Sugar Co., 282 Pa. 265; Brown v. Clay Products Co., 259 Pa. 267; Scheel v. Shaw, 252 Pa. 451; Burns v. Flaherty Co., 278 Pa. 579.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE FRAZER:

Plaintiff sued to recover damages for personal injuries, resulting from being struck by an automobile owned by defendant company, and operated by Charles Vetter, its employe as a used-car salesman, about eleven o'clock on the evening of September 26, 1923, while driving on a public highway near the village of Glenshaw, Allegheny County. The jury having found for plaintiff, judgment was subsequently entered for defendant non obstante veredicto for the reason the evidence failed to show Vetter was engaged in the business of his employer at the time of the accident.

That defendant company was the owner of the car is not denied, nor is it disputed that Vetter was its employee, and that the car was operated at the time of the accident under the dealer's license plates belonging to defendant. The sole question in dispute was whether the use of the car was for the purpose of Vetter's employment. Plaintiff contends, first, the dealer's license plates on the car raises a presumption it was being used on defendant's business, and, second, sufficient evidence appeared to warrant a finding the car was so operated at the time the accident happened.

We deem unnecessary a discussion of the question whether, under the Act of June 14, 1923, P.L. 718, in force at the time, the mere use of a dealer's license tag raised a presumption that the car was used in the latter's business, inasmuch as the undisputed evidence shows the automobile was in fact used by Vetter without authority, and not pursuant to duties connected with his employment. Plaintiff called one of defendant's officers on cross-examination, and from his testimony it appeared Vetter was authorized to take out cars for demonstration purposes, only by permission of the head of his department. Except for testimony subsequently stricken out, and which will be referred to later, this was the only evidence bearing on that point produced by plaintiff. Defendant, on its part, proved that Vetter did not receive permission or authority to take the car out on the night of the accident. The record contains no evidence to contradict the above, unless it is a declaration made by Vetter, four days after the accident, which was admitted under objection and subsequently stricken out by the court below. Defendant also produced a witness who testified she was in the car driven by Vetter at the time the accident happened, and that she had been invited by him that evening to go for a drive.

Plaintiff's contention is that Vetter had, on the evening of the accident, taken the car out for the purpose of calling on a prospective purchaser. Vetter was not a witness in the case and to sustain this contention plaintiff offered the deposition of a woman claimed to have been a prospective purchaser, in which she stated that, four days...