White v. Consumers Finance Service, Inc.

• Decision Date: 24 June 1940
• Docket Number: 178
• Citation: 339 Pa. 417,15 A.2d 142
• Parties: White v. Consumers Finance Service, Inc., Appellant, et al
• Court: Pennsylvania Supreme Court

15 A.2d 142

339 Pa. 417

White v. Consumers Finance Service, Inc., Appellant, et al

No. 178

Supreme Court of Pennsylvania

June 24, 1940

Argued April 9, 1940.

Appeal, No. 178, Jan. T., 1940, from judgment of C.P. Luzerne Co., Dec. T., 1937, No. 1929, in case of Ross White v Consumers Finance Service, Inc., et al.Judgment reversed.

Trespass for personal injuries.Before VALENTINE, J.

The opinion of the Supreme Court states the facts.

Verdict for plaintiff in sum of $9,500 against original defendant and verdict directed in favor of additional defendant and judgments entered thereon.Original defendant appealed.

Errors assigned, among others, related to the dismissal of motions for new trial and for judgment n.o.v.

The judgment of the court below is reversed, and is here entered for the appellant upon the whole record.

C. B Lenahan, for appellant.

James O. Loughlin, with him J. Gordon Mason and Thomas K. Fadden for additional defendantappellee.

James P. Harris for plaintiffappellee.

Before SCHAFFER, C.J., MAXEY, DREW, LINN, BARNES and PATTERSON, JJ.

OPINION

MR. BARNES, JUSTICE.

The plaintiff was employed by the Republic Oil Company at its gasoline station in Kingston, Luzerne County.On the morning of September 7, 1937, he was engaged in fastening a gasoline pump to a concrete island on the station premises when an automobile driven by one Rex Huddy came over the curb and struck plaintiff in such manner that he sustained serious injuries.

The owner of the automobile was Michael Hanchulak, who resided in the borough of Edwardsville, which adjoins the city of Wilkes-Barre.The defendant, Consumers Finance Service, Inc., with its offices in the city of Wilkes-Barre, held an encumbrance upon the car, the payments of which were in default.

On the day in question the finance company instructed one of its employees, George T. Smith, to call at the residence of Hanchulak, repossess the car and deliver it to Sam Feldman, a dealer in used cars, doing business under the name of the Goodwin Auto Company, in the borough of Kingston, adjacent to Edwardsville.

It appears from the evidence that several days prior to the accident the manager of the finance company, in the course of a telephone conversation with Feldman, advised him that he thought it would be necessary to repossess the Hanchulak automobile, and made a tentative proposal to deliver the car to Feldman.The arrangement made was an indefinite one, as appears by the testimony of the manager, William H. Krimmel, who said: ". . . in the course of our casual conversation I told him I thought it would be necessary to repossess this automobile, did he think he would take it and he said, yes, and I said, all right, sir, I will see that you get it.That was our conversation."

While enroute to take the car, Smith called at the Feldman place of business and requested Huddy, a salesman in the employ of Feldman, to accompany him to the Hanchulak home at Edwardsville, and assist him in re-possessing the car.Feldman was not on the premises at the time, and knew nothing of Smith's request for assistance.Upon arrival at Hanchulak's residence the car was found in the driveway and Smith took possession of it.The two men were unable to get the engine started, and they pushed the car into the street.Huddy, who was in the driver's seat, steered the car, while Smith in his automobile pushed it a distance of about thirty feet, until the motor finally started.Huddy then drove the car along the main street of Edwardsville in the direction of Feldman's establishment, with Smith following in his automobile.When Huddy reached a point about opposite to the gasoline station in near-by Kingston, he suddenly swerved the car, went over the curb and sidewalk into the station, and there struck and injured the plaintiff.

The present action in trespass was instituted by plaintiff against the Consumers Finance Service, Inc., alleging that it was the employer of Huddy at the time of the accident.Thereafter, by writ of scire facias, defendant brought in Feldman, trading as Goodwin Auto Company, as additional defendant asserting that when the accident occurred Huddy was in the employ of Feldman, and engaged on his business.Judgment by default was entered against the additional defendant, which was subsequently opened.An appearance was then entered and an answer filed on his behalf.

At the trial, the court gave binding instructions in favor of Feldman, but the issue of negligence and the question of Huddy's employment by the finance company was submitted to the jury.A verdict for plaintiff in the sum of $9,500 was returned, and the motions of the original defendant for a new trial and for judgment non obstante veredicto were denied by the court in banc.This appeal is brought by the original defendant, assigning as error the refusal of these motions, the direction of a verdict for the additional defendant, and the opening of the judgment against him.

The record discloses no evidence upon which the jury might have found that Huddy was acting as Feldman's agent, engaged upon his business at the time of the accident.There were no definite arrangements whereby Feldman had agreed to accept the Hanchulak car from the finance company.He had been informed merely that delivery of the repossessed car would be made at his place of business.Nor is there any evidence that his assistance had been requested in obtaining possession of the vehicle.He employed Huddy solely as a salesman working on a commission basis.The mere fact of such employment is insufficient to establish that in this instance Huddy was acting as his agent in the absence of proof that he authorized him to cooperate with the finance company, or its employee Smith, in repossessing the automobile.SeeRoberts v. Scott Bros., Inc.,315 Pa. 341;Gittelman v. Hoover Co.,337 Pa. 242, 245.The direction of a verdict in favor of the additional defendant was therefore proper.

The liability of the original defendant for the acts of Huddy depends upon the question whether Smith, its employee, had express or implied authority to obtain Huddy's assistance in the repossession of the car.The general rule applicable to situations of this type is stated in many of...