Sefton v. Valley Dairy Co.

• Decision Date: 28 September 1942
• Docket Number: 37
• Citation: 345 Pa. 324,28 A.2d 313
• Parties: Sefton v. Valley Dairy Company, Appellant
• Court: Pennsylvania Supreme Court

28 A.2d 313

345 Pa. 324

Sefton v. Valley Dairy Company, Appellant

No. 37

Supreme Court of Pennsylvania

September 28, 1942

Argued March 24, 1942.

Appeal, No. 37, March T., 1942, from judgment of C.P Allegheny Co., Jan. T., 1940, No. 576, in case of Edward Sefton v. Valley Dairy Company. Judgment affirmed.

Trespass for personal injuries. Before EGAN, J.

Verdict and judgment for plaintiff in sum of $3,000. Defendant appealed.

Judgment affirmed.

Edward J. I. Gannon, with him S. M. Hazlett, of Hazlett, Gannon &amp Walter, for appellant.

Edward Schreiner, of Schreiner & Loeffler, for appellee.

Before SCHAFFER, C.J.; MAXEY, DREW, LINN, STERN, PATTERSON and PARKER, JJ.

OPINION

MR. JUSTICE PARKER:

In this action of trespass, arising out of a collision between a car in which plaintiff was a passenger and a Dodge truck operated by Norman Schwartz, plaintiff recovered a verdict. Defendant complains of the refusal of its motion for judgment n.o.v. and the entry of judgment for plaintiff. The principal question now involved is whether defendant, Valley Dairy Company, was liable by virtue of the doctrine of respondeat superior, or more specifically, whether the evidence was sufficient to sustain the finding of the jury that Schwartz was at the time of the accident an employee of defendant engaged in the business of defendant "within the scope of his authority and employment." Plaintiff in making a case relied on the presumption as to ownership and agency which arises when the business name of an alleged owner is displayed on a commercial vehicle.

A review of the evidence in a light most favorable to plaintiff giving him the benefit of every inference of fact pertaining to the issue involved which may reasonably be deduced from the evidence (Guilinger v. P.R.R. Co., 304 Pa. 140, 144, 155 A. 293) will show that the judgment must be affirmed. No question is raised as to the negligence of the driver of the truck. Plaintiff's witnesses testified that the commercial truck with which the car in which plaintiff was riding collided had printed on it "Valley Dairy Company" in large letters and in small letters "H.P. 31" which is the health permit number assigned to defendant. One witness stated that defendant's telephone number was on the truck and another that he saw milk bottles in it. It was developed on cross examination of defendant's witnesses that the milk which was sold from the truck was secured from defendant and that bills rendered for milk sold from this truck were on blanks captioned with defendant's name, address and telephone number.

There was strong oral testimony on the part of defendant tending to show that the truck in question was the property of Richard Schwartz, a brother of the driver, that neither he nor Norman was employed by defendant and that at the time of the accident Norman was on an errand to a grocery store for his mother. However, this conflict raised by the oral testimony is not of moment in determining whether defendant is entitled to judgment n.o.v. and the defendant has indicated positively that it does not wish a new trial.

It is well settled by our previous decisions that the presence of a defendant's name on a commercial vehicle raises a rebuttable presumption that the vehicle is owned by defendant and that the driver of the vehicle is a servant of defendant acting within the scope of his employment: Williams v Ludwig Floral Co., 252 Pa. 140, 97 A. 206; Holzheimer v. Lit Bros., 262 Pa. 150, 105 A. 73; Sieber v. Russ Bros. Ice Cream Co., 276 Pa. 340, 120 A. 272; Hartig v. American Ice Co., 290 Pa. 21, 137 A. 867; Talarico v. Baker Office Furn. Co., 298 Pa. 211, 149 A. 883. This presumption is sufficient to take the case to the jury even though defendant produces uncontradicted evidence that the driver was not its employee (Holzheimer v. Lit Bros., supra), or produces evidence that it did not own the vehicle in question (Hartig v. American Ice Co., supra). The rule is thus stated in the Hartig case: "Where the evidence produced by plaintiff, if believed, is sufficient to prove that he was injured by the negligence of one in charge of a business automobile, bearing the trade name of defendant, displayed thereon in such a manner as trade or business...