7 A.2d 502 | Pa. Super. Ct. | 1939
Argued March 16, 1939.
Three actions in trespass were consolidated by the court below, and were tried together, resulting in verdicts for the plaintiffs. In each of these appeals the refusal of the lower court to enter judgment for the defendant non obstante veredicto is assigned as error, and the controlling question is narrowed to the single inquiry: Is there competent proof sufficient in law, that the defendant was the owner of the car which caused the damage, that the driver was his servant, engaged at the time in the master's business? The burden of this proof was upon the plaintiffs. Double v. Myers,
Plaintiff, Harry Alfandre, was driving his Chevrolet sedan eastwardly on the Lincoln Highway in the vicinity of West York. In the car with him were his wife and child. The middle of the highway is marked by a white line and the pavement is wide enough for four lanes of traffic. He was driving at a moderate rate of speed on his right side of the road in the southernmost lane. He observed an approaching truck about three hundred feet away, traveling westwardly, and a Plymouth roadster, driven at a high rate of speed, behind it. This roadster, as it approached, turned out from behind the truck so suddenly that an occupant of the car was thrown out upon the pavement. It then crossed the two inside lanes of traffic on the highway and ran head-on into this plaintiff's car, damaging it and injuring all of the plaintiffs. Harry Alfandre had applied his brakes at the time of the collision and had come almost to a stop at the southern edge of the pavement. It is conceded that the proximate cause of the injuries was the negligence of the driver of the Plymouth car, and that Harry Alfandre was not chargeable with contributory negligence.
To meet the burden upon them, plaintiffs proved that the car which caused the damage bore the following *541
in painted letters upon the tonneau: "J.H. Bream Good Used Cars Guaranteed Motor Repairs." Since this was a business automobile, the equivalent of a trade name upon it was sufficient to raise the presumption that it was owned by the defendant and that it was being used for his business purposes, and this presumption would have entitled plaintiffs to have their cases submitted to the jury on the issue of ownership and agency: Nalevanko v.Marie,
But on the same authority plaintiffs were bound by all of the testimony of defendant, when called as on cross-examination, and since the presumption of ownership and use raised by the license tags was rebutted by defendant's uncontradicted parol evidence, the presumption was destroyed and the plaintiffs must be regarded as having failed to make out a prima facie case *542 entitling them to go to the jury, unless there is additional testimony which brings these cases within an exception to the rule.
The rule that one is bound by the testimony of an adverse party called as on cross-examination, unless contradicted by direct evidence, is subject to qualification. In Burke v. Kennedy,
In the case before us, the testimony of the defendant on the controlling question, in the opinion of the trial judge, was false and the issues were submitted to the jury.
The defendant owned the automobile, according to the testimony, until the day before the collision. Though he said he had sold and delivered it to the purchaser, yet until a few seconds before the accident, admittedly, it was being used in defendant's business on a mission specifically directed by him. Moreover, the car was being driven not by the alleged purchaser, but by Emig, defendant's servant. The car still bore defendant's name and advertised his business. On the car were defendant's registration plates issued to him as a dealer for use only by him or in his business, and if the car no longer belonged to him, defendant by allowing his dealer's tags to remain on the car after delivery to the *543 purchaser, violated the Act of May 1, 1929, P.L. 905, Art. V. Sec. 508, which prohibits the giving or loaning of dealers' registration plates to another. The inference is that he did not violate the law because he still owned the car. All of the testimony relating to the sale of the car rests upon defendant's uncorroborated parol testimony. The testimony of the witness Emig also is improbable. His story that he was on the business of his employer until a few seconds before the accident, but at the time of the actual occurrence, that he was on some undescribed mission of his own, all while continuing to travel along the same highway, lacks the ring of truth. The character of the testimony of both defendant and his employe, Emig, suggests the probability of a union of effort to protect the interests of the defendant.
A consideration of all of the testimony, in the light of the attendant circumstances, convinces us that the defendant's liability was an issue for the jury. The trial judge was far from capricious in arriving at his estimate of defendant's testimony. To read it is to question it, and since there is inherent improbability in the statement of the witness sufficient to support the opinion of the trial judge that the testimony as to the controlling issue is false, all of the issues were for the jury and the judgments should not be disturbed: Burke v. Kennedy, supra.
The judgments are affirmed.