Talarico v. Baker Office Furniture Co.

• Decision Date: 25 November 1929
• Docket Number: 152
• Citation: 149 A. 883,298 Pa. 211
• Parties: Talarico v. Baker Office Furniture Co., Appellant
• Court: Pennsylvania Supreme Court

149 A. 883

298 Pa. 211

Talarico v. Baker Office Furniture Co., Appellant

No. 152

Supreme Court of Pennsylvania

November 25, 1929

Argued October 8, 1929

Appeal, No. 152, March T., 1929, by defendant, from judgment of C.P. Allegheny Co., July T., 1927, No. 3717, on verdict for plaintiff, in case of Teresa Talarico v. Baker Office Furniture Co. Affirmed.

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

The opinion of the Supreme Court states the facts.

Verdict and judgment for plaintiff for $5,000.Defendant appealed.

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

The judgment is affirmed.

William A. Challener, with him William A. Challener, Jr., for appellant.

E. W Langfitt, for appellee.

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

OPINION

PER CURIAM:

This case is before us on a motion for judgment non obstante veredicto alone.We adopt the following excerpts from the opinion of the court below refusing to enter such judgment:

"At about 10:30 p.m. on March 1, 1927, plaintiff's husband, a street sweeper employed by the City of Pittsburgh, while engaged at his work. . ., was struck by a truck owned by defendant and bearing its trade name.Defendant admitted formally that the driver of the truck was its employee and that he was negligent in operation of [the] car, but it contended that he had abandoned its business shortly after 5:00 o'clock p.m. on the day of the accident, and had gone on a mission of his own.In support of this contention defendant offered evidence [tending to show that the accident happened when the driver was using the truck for his own purposes].

"Plaintiff offered no evidence to contradict defendant's testimony relative to the duties of the driver and his movements on the night in question.She relied entirely upon the presumptions arising from the fact that the vehicle which caused the injury was a business automobile bearing defendant's trade name and in charge of its employee.When these presumptions arise from proven facts they ordinarily entitle plaintiff to have the case submitted to a jury.This rule is discussed in all of its aspects in the comparatively recent case of Hartig v. American Ice Co. et al.,290 Pa 21, 30.The applicable general rules are stated thus: '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 names are usually placed on vehicles used for trade or business purposes, these facts are sufficient, (1) to raise the presumption that the car in question was owned by defendant and was being used by the person in charge thereof for defendant's business purposes; and, (2) when such presumptions so arise, they entitle plaintiff to have his case submitted to the jury, (a) unless plaintiff himself shows, in the presentation of his case, that, as a matter of fact, the car did not...