75 Pa. Super. 440 | Pa. Super. Ct. | 1921
Opinion by
We must sustain the assignment to the refusal to direct a verdict for defendant.
Plaintiff and three others were in a wagon driven westward on Vine street about 7:30 a. m. An automobile owned by defendant negligently collided with the wagon and plaintiff was injured. The record contains no evidence of the business in which defendant was engaged. In its affidavit of defense it set up that the automobile was stolen from its garage that morning, and at the time of the occurrence was being driven by persons to it unknown, without its authority, and not upon its business. To recover, in addition to proving negligence causing the accident, it was “necessary for the plaintiff to prove not only, [a] that defendant was the owner of the car and [b] that the driver was his servant, but [c] that such servant was at the time engaged in his master’s business”: Scheel v. Shaw, 252 Pa. 451, at 460. The negligent driving of the car was established, and of the three remaining facts
If for the purpose of this case we infer from that testimony that the driver was defendant’s servant (leaving undecided whether such evidence will support the presumption), we are still left without the third fact (c), that at the time he was engaged in the master’s business. There is no evidence of any kind to show upon what business or errand any of the occupants of the defendant’s car were engaged. As soon as the accident occurred, they all ran away. Assuming then that fact (b)',
The language of the Supreme Court in Passenger Ry. Co. v. Henrice, 92 Pa. 431, 434, is applicable: “This would be to found a presumption upon a presumption, which is never allowed. A presumption should always be based upon a fact, and should be a reasonable and natural deduction from that fact. The true rule was correctly stated by Mr. Justice Thompson, in Douglass v. Mitchell’s Exrs., 11 Casey 443: ‘That as proof of a fact, the law permits inferences from other facts, but does not allow presumptions of fact from presumptions. A fact being established, other facts may be, and often are ascertained by just inferences. Not so with a mere presumption of a fact; no presumption can with safety be drawn from a presumption; there being no fixed or ascertained fact from which an inference of fact might be drawn, none is drawn.’ ” See also Welch v. R. R. Co., 181 Pa. 461, 463, 464; 10 R. C. L. 868, 870.
The judgment is reversed and is now entered for thg defendant.