Sarver v. Mitchell

• Decision Date: 18 November 1907
• Docket Number: 10-1907
• Citation: 35 Pa.Super. 69
• Parties: Sarver v. Mitchell, Appellant
• Court: Pennsylvania Superior Court

35 Pa.Super. 69

Sarver v. Mitchell, Appellant

No. 10-1907

Superior Court of Pennsylvania

November 18, 1907

Argued October 9, 1907

Appeal by defendant, from judgment of C. P., No. 3, Phila. Co.-1905 No. 2,642, on verdict for plaintiff in case of Austin C. Sarver v. John K. Mitchell.

Trespass to recover damages for death of a child. Before von Moschzisker, J.

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

Verdict and judgment for plaintiff for $ 1,000. Defendant appealed.

Error assigned was in discharging the rule for judgment non obstante veredicto.

Thomas Ridgway, for appellant. -- A nonsuit should have been entered: Lotz v. Hanlon, 217 Pa. 339; Quigley v Thompson, 211 Pa. 107; Bard v. Yohn, 26 Pa 482; Towanda Coal Co. v. Heeman, 86 Pa. 418; Rudgeair v. Traction Co., 180 Pa. 333; Murphey v. Transit Co., 30 Pa.Super. 87; Clark v. Buckmobile Co., 94 N.Y.S. 771; Cavanagh v. Dinsmore, 12 Hun, 465; Sheridan v. Charlick, 4 Daly, 338; McCarthy v. Timmins, 178 Mass. 378 (59 N.E. 1038); St. Louis S.W. Ry. Co. v. Harvey, 144 F. 806.

Chester N. Farr, Jr., with him William C. Mayne, for appellee. -- Upon proof of ownership in the defendant a presumption is raised that the car was being operated by the defendant's servant and that the servant was acting within the scope of his employment: Hershinger v. Penna. R. R. Co., 25 Pa.Super. 147; Hennessey v. Baugh, 29 Pa.Super. 310; Corpies v. Sand Co., 31 Pa.Super. 107; Edgeworth v. Wood, 58 N.J.L. 463 (33 A. 940); Joyce v Capel, 8 C. & P. 370; Doherty v. Lord, 28 N.Y.S. 720; Schulte v. Holliday, 54 Mich. 73 (19 N.W. 752); Norris v. Kohler, 41 N.Y. 42; Birnbaum v. Lord, 28 N.Y.S. 17; Perlstein v. Express Co., 177 Mass. 530 (59 N.E. 194); Spitzer v. Delivery Express Co., 45 N.Y.S. 682; Stables v. Eley, 1 C. & P. 614; Baldwin v. Abraham, 67 N.Y.S. 1079; Spear v. Railroad Co., 119 Pa. 61; Penna. R. R. Co. v. Weiss, 87 Pa. 447; Railroad Co. v. Miller, 87 Pa. 395; McCafferty v. Railroad Co., 193 Pa. 339.

Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ. Orlady, J., dissents.

OPINION

BEAVER, J.

What was said in Lotz v. Hanlon, 217 Pa. 339, applies here: " It was essential to a recovery in this case that it be made to appear that the accident from which plaintiff's injury (the death of plaintiff's child) resulted, occurred while the person in charge of the automobile was using it in the course of his employment, and on his master's business. Plaintiff offered no direct evidence as to this, but, having shown the ownership of the machine to be in the defendant, sought to derive from this circumstance, and this alone, not only the fact that the person in charge was defendant's servant, but the further fact that he was at the time engaged on the master's errand. If when plaintiff rested a nonsuit had been ordered, he could not have been heard to complain. Ownership of the machine in cases of this character is at best but a scant basis for the inference that was here sought to be derived from it. It is allowed as adequate only when the attending circumstances point to no different conclusion. In itself, it is but one of a series of circumstances and its significance depends on the extent of the general concurrence of these. If they indicate something different, the scant basis that this single fact otherwise might afford is reduced below the point of sufficiency. Because its value as a probatory fact so entirely depends upon attending circumstances, it is always the duty of the party seeking to establish through it a prima facie case to develop the whole situation, so that its significance could be accurately measured. When he fails in this regard and his evidence leaves the general situation undisclosed, and this without explanation of the failure, he is liable to suffer from the inference that what was not disclosed was prejudicial to his case. Where this occurs, the mere fact of ownership can count for little."

In this case the plaintiff showed that the automobile which caused the death of his child bore a number which corresponded with that of a machine owned by the defendant. He did not show that the man driving the machine was in the employ of the defendant, nor that it was engaged in any way in the service of the defendant at the time the accident occurred. The chauffeur was not called as a witness. A motion for a nonsuit was refused. The defendant, however, being called as a witness in his own behalf, admitted that the man engaged in running the automobile was in his employ. This, of course, established the second fact necessary to a recovery. Not only did he state, however, that the man was not engaged in running it upon his business, or by his direction, or upon any errand in his behalf, but, on the contrary, that he was using it in practical opposition to the defendant's instructions and, as the attendant circumstances showed, upon a pleasure trip in which his (the chauffeur's) personal friends or acquaintances were sharing the pleasure with him.

The trial judge in the court below was correct in holding that the credibility of the defendant as a witness was for the jury and that it did not, therefore, necessarily follow that because the defendant was not contradicted in regard to the instructions given by him to his employee, that the fact of his acting in violation of instructions was established, but it is to be remembered that the plaintiff gave no testimony whatever as to the fact that the chauffeur was in the employ of the defendant or that he was engaged in his master's business; and, even if the jury disbelieved the defendant as to his instructions to his employee, there would, therefore, be no evidence whatever as to the character of the errand or business in which the chauffeur was employed at the time of the accident, all the attending circumstances, as narrated by plaintiff's witness who...