Readshaw v. Montgomery, Trading As Wilson Electric Co

• Decision Date: 27 November 1933
• Docket Number: 115
• Parties: Readshaw et ux. v. Montgomery, trading as Wilson Electric Co
• Court: Pennsylvania Supreme Court

169 A. 135

313 Pa. 206

Readshaw et ux. v. Montgomery, trading as Wilson Electric Co

Nos. 115

Supreme Court of Pennsylvania

November 27, 1933

Argued October 2, 1933

Appeals, Nos. 115 and 116, March T., 1933, by defendant, from judgments of C.P. Washington Co., May T., 1932, No. 117, on verdicts for plaintiffs, in case of Mary E. Readshaw and H A. Readshaw v. W. S. Montgomery, trading as Wilson Electric Company. Reversed.

Trespass for personal injuries. Before BROWNSON, P.J.

The opinion of the Supreme Court states the facts.

Verdicts for plaintiffs and judgments thereon. Defendant appealed.

Error assigned, inter alia, was refusal of judgment n.o.v., quoting record.

The judgments of the court below are reversed, and judgment is here entered for defendant.

Rufus S. Marriner, with him John F. Wiley, of Marriner & Wiley, for appellant.

H Russell Stahlman, for appellees.

Before FRAZER, C.J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.

OPINION

MR. JUSTICE DREW:

Plaintiffs, husband and wife, brought this action in the court below to recover damages for injuries alleged to have been sustained by the wife in a collision between an automobile in which she was riding and a truck owned by defendant and operated by one of his salesmen. There were separate verdicts and judgments for plaintiffs, from which defendant took separate appeals, assigning as error the refusal of his motions for judgment n.o.v.

The accident occurred about 5:30 on the afternoon of Sunday, September 27, 1931, on the highway between Canonsburg and Washington, Pa. Witnesses for plaintiffs testified that the truck (a light Ford delivery truck) bore on the hood the words "Wilson Electric Company, Canonsburg, Washington, Charleroi," and the word "Maytag." Defendant admitted that he was engaged, at the places named, in the business of selling and servicing Maytag washing machines, and selling refrigerators and radios, under the firm name of Wilson Electric Company. He also admitted that the truck belonged to him, that the driver, Martin, was a salesman who sold washing machines for him on commission, and that Martin regularly used the truck in his work.

In an action to recover damages for injuries alleged to have been caused by a motor vehicle owned by defendant and operated by his servant, the burden is of course upon plaintiff to prove, in some adequate manner, not only that defendant was the owner of the vehicle and that the driver was his servant (which facts are here admitted), but also that the servant was at the time engaged in the master's business: Farbo v. Caskey, 272 Pa. 573; Double v. Myers, 305 Pa. 266. It is not necessary in all cases, however, that these elements be established by direct evidence; we have held in a long line of decisions that plaintiff may meet this burden by producing evidence that the vehicle was a business vehicle and that it bore the trade name of the defendant, and that such evidence is sufficient to make improper the giving of binding instructions for the defendant, even though there is uncontradicted oral testimony produced by defendant that the vehicle was not being used for his purposes at the time of the accident: Williams v. Ludwig Floral Co., 252 Pa. 140; Holzheimer v. Lit Bros., 262 Pa. 150; Sieber v. Russ Bros. Ice Cream Co., 276 Pa. 340; Gojkovic v. Wageley, 278 Pa. 488; Hartig v. Am. Ice Co., 290 Pa. 21; Talarico v. Baker Office Furniture Co., 298 Pa. 211; see Double v. Myers, supra; Deater v. Penn Machine Co., 311 Pa. 291.

The rationale of this rule is that such facts give rise to an inference that the vehicle was being used for the purposes of the defendant. Business vehicles are generally used in the business of the owner, and when it is shown that the vehicle was a business vehicle and that it bore the trade name of the defendant, it is a fair inference that the vehicle was owned by the defendant, that the driver was his servant, and that it was being used for the purposes of defendant's business. Where, upon a consideration of plaintiff's whole case and anything in defendant's case which might help to create such an inference, no such inference can arise, the doctrine of the cases cited has no application. Such is the situation here.

Defendant was called by plaintiffs to testify as if under cross-examination, as is permitted by the Act of May 23 1887, P.L. 158, section 7. He stated, in answer to questions asked by plaintiffs' counsel, that he owned and operated the Wilson Electric Company throughout the month of September, 1931, and that he used Ford trucks in his business throughout that month. His own counsel then asked him to explain what he meant by "throughout the month of September," and he answered, "I do not operate the trucks or work on Sunday." This statement was not contradicted at any time, and plaintiffs are bound by it. One who calls an adverse party as upon cross-examination is concluded by his testimony, if uncontradicted (Dunmore v. Padden, 262 Pa. 436; Krewson v. Sawyer, 266 Pa. 284; Felski v. Zeidman, 281 Pa. 419; Morningstar v. R.R., 290 Pa. 14), and this includes not only his testimony as developed by the party who called him, but also statements then elicited by his own counsel which are merely explanatory of such testimony. Hence plaintiffs are bound by defendant's statement that he did not do business or operate his trucks on Sunday. The situation, then,...