Wesolowski v. John Hancock Mut. Life Ins. Co.

• Court: United States State Supreme Court of Pennsylvania
• Writing for the Court: MAXEY, J.
• Citation: 308 Pa. 117,162 A. 166
• Decision Date: 26 May 1932
• Parties: WESOLOWSKI et al. v. JOHN HANCOCK MUT. LIFE INS. CO.

162 A. 166
308 Pa. 117

WESOLOWSKI et al.
v.
JOHN HANCOCK MUT. LIFE INS. CO.

Supreme Court of Pennsylvania.

May 26, 1932.

162 A. 166

Appeal from Court of Common Pleas, Philadelphia County; Charles V. Henry, President Judge.

Action by John Wesolowski, Jr., by his parents and next friends, John Wesolowski, Sr., and wife, and by such parents in their own right, against the John Hancock Mutual Life Insurance Company. From a judgment in favor of defendant notwithstanding the verdict, plaintiff first named appeals.

Affirmed.

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

Francis M. McAdams and Thomas Cogan, both of Philadelphia, for appellants.

Ira Jewell Williams, Ira Jewell Williams, Jr., Brown & Williams, Francis Shunk Brown, and Charles McVeigh Willits, all of Philadelphia, for appellee.

MAXEY, J.

The John Hancock Mutual Life Insurance Company employed Charles J. Adams to solicit life insurance business and to make weekly collections of premiums. His salary was $15 per week plus commissions on new business. His territory was less than a square mile in the city of Philadelphia. The company had the right to Adams' exclusive services and to fix his working hours. In covering his territory, Adams sometimes walked and sometimes drove his own Ford car, which he maintained and operated at his own expense. The company did not require him to use a car, though the company's superintendent, when informed that Adams had a car, said, "If you have one, you might as well use it."

On March 12, 1927, Adams was on his way in his car to make collections for the company. While on Hunting Park avenue, he passed a car ahead of him, and in doing so and while on the left side of the street, his automobile collided with a bicycle on which John Wesolowski, the minor plaintiff, then fifteen years old, was riding. As a result of the collision, the youth sustained serious and permanent injuries. Suit was brought. At the trial the issues were Adams' negligence, the youth's contributory negligence,

162 A. 167

and whether or not the defendant was, under the facts of the case, legally responsible for the negligence of Adams, if it was in fact found that the latter was negligent. Verdicts of $21,000 and $1,600 were returned in favor of the minor plaintiff and his parents respectively. Defendant filed a motion for judgment n. o. v., contending: (1) That the doctrine of respondeat superior was inapplicable in this ease, and (2) that the case disclosed such obvious contributory negligence on the part of the minor plaintiff as to entitle the defendant to have the court so to hold as a matter of law. The court below while holding—and correctly so—that the question of contributory negligence was for the jury, upheld the first contention and entered judgment for defendant n. o. v. This is the only phase of the case that requires discussion.

The respective counsel agree that no other case has reached the appellate courts of this state with facts so nearly similar to the facts of the case now before us as to make any former decision of these courts of controlling force on this record. The precise point at issue under the facts...