Sieber v. Russ Bros. Ice Cream Co.

• Decision Date: 12 February 1923
• Docket Number: 8
• Citation: 276 Pa. 340,120 A. 272
• Parties: Sieber, Appellant, v. Russ Bros. Ice Cream Co
• Court: Pennsylvania Supreme Court

120 A. 272

276 Pa. 340

Sieber, Appellant, v. Russ Bros. Ice Cream Co

No. 8

Supreme Court of Pennsylvania

February 12, 1923

Argued January 4, 1923

Appeal, No. 8, May T., 1923, by plaintiff, from order of C.P DauphinCo., Jan. T., 1921, No. 491, refusing to take off nonsuit, in case of Catharine Killian Sieber v. Russ Bros Ice Cream Co. Reversed.

Trespass for death of plaintiff's husband.Before WICKERSHAM, J.

The opinion of the Supreme Court states the facts.

Nonsuit and refusal to take it off.Plaintiff appealed.

Error assigned was refusal to take off nonsuit, quoting record.

The judgment is reversed and a new trial ordered.

William Jenkins Wilcox, for appellant.-- There was sufficient evidence to establish, not only a prima facie that defendants were the owners of the truck, but also that it was then in charge of their servant, or employee.This was presumptive evidence, and, was quite sufficient to carry the case to the jury: Holzheimer v. Lit Bros.,262 Pa. 150;Farbo v. Caskey,272 Pa. 573;Maloy v. Rosenbaum Co.,260 Pa. 466;Williams v. Floral Co.,252 Pa. 140;O'Malley v. Ledger Co., 257 Pa. 17.

Arthur H. Hull, with him John R. Geyer and E. E. Beidleman, for appellee.-- There was neither proof nor presumption that the car was being driven upon defendant's errand, nor proof of the identity or office of the driver of the car: Farbo v. Caskey,272 Pa. 573;Buck v. Cab Co.,75 Pa.Super. 440;Luckett v. Reighard,248 Pa. 24;Lotz v. Hanlon,217 Pa. 339;Curran v. Lorch,243 Pa. 247;Solomon v. Com. T. Co.,256 Pa. 55;Dunmore v. Padden,262 Pa. 436;Moon v. Matthews,227 Pa. 488;Hazzard v. Carstairs, 244 Pa. 122.

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

OPINION

MR. JUSTICE FRAZER:

Plaintiff's husband was instantly killed by an automobile delivery truck belonging to defendant, a manufacturer and vendor of ice cream.At the trial plaintiff offered in evidence that part of the statement of claim which averred defendant owned the truck in question and that it was operated by its agents and employees in a careless and negligent manner, together with the portion of the affidavit of defense admitting defendant's ownership but denying that at the time of the accident the truck was in its possession and operated by its agents or employees.Plaintiff also offered evidence that the car bore defendant's name and contained cans used in the transportation and delivery of ice cream.Defendant offered no evidence but moved for a nonsuit, which was granted on the ground that plaintiff failed to prove defendant's truck was driven by its servants, or, if so operated, that they were engaged in their employer's business at the time of the accident.The sole question raised in this appeal is whether the evidence referring to the identity and use of the car was sufficient to meet the burden imposed on plaintiff to show the driver was defendant's servant and was at the time acting within the scope of his employment.

Under decisions of this court the evidence offered by plaintiff was ample to require submission of the case to the jury.In Williams v. Ludwig Floral Co.,252 Pa. 140, evidence that the auto delivery car inflicting the injury bore the name of defendant and was driven by the secretary of the company was held ample to warrant an inference that the truck at the time was operated in connection with defendant's business; although the accident happened on Sunday it appeared defendant's store was open for business on that day and the car traveling from the direction of the store.In O'Malley v. Public Ledger Co.,257 Pa. 17, evidence that the automobile which caused plaintiff's injury bore the name of defendant, the publisher of a newspaper, and contained bundles of newspapers intended for delivery to customers, was held sufficient proof that the driver was the employee of defendant and engaged in the business of his employment.In Holzheimer v. Lit Bros.,262 Pa. 150, we held a truck bearing the name of defendant sufficiently raised a presumption that the car was their property and was at the time in charge of their employees engaged in their employment and that the case was for the jury, notwithstanding uncontradicted evidence offered by defendant to the effect that the person who operated the truck at the time was not, in fact, in their employ but was using the truck for his own purposes without defendant's knowledge or consent.And in Treon v. Shipman,275 Pa. 246, it was held proof that the car which caused plaintiff's injury was an undertaker's car, used for business purposes, and driven by one of the members of defendant firm, which conducted an undertaking business, was sufficient to put upon defendant the burden of showing that at the time of the accident the car was not, in fact, being used on defendant's business but for the private purposes of one of the drivers.

The court below in granting a nonsuit relied on Farbo v Caskey,272 Pa. 573, in which we held there could be no recovery where plaintiff merely averred the driver of the vehicle was defendant's agent, without stating he was engaged in the performance of defendant's service at the time of the accident.There was nothing in the evidence to show the driver was actually so engaged.The case was tried, however, on the theory that the averment in the statement of claim that defendant was the owner of the car in question being undenied in the affidavit of defense sufficiently established a prima facie case for plaintiff.The statement of claim was not offered in...