175 A. 417 | Pa. | 1934
Plaintiffs recovered verdicts against F. C. Roehler and Mary Roehler, husband and wife, for damages resulting from his alleged negligence in operating an automobile jointly owned by defendants. From the judgments entered thereon the wife alone has appealed.
The sole question raised is whether the evidence is sufficient to show a master-servant relation between defendants — the only ground upon which the verdict against appellant could be sustained. Was the husband at the time of the accident acting as his wife's servant? We can find nothing in the record to indicate such a relationship. On this point, the whole of the testimony favorable to plaintiffs was that on the day of the accident appellant's husband had driven to a farm owned by her, taking some chicken feed with him, and that the accident happened in the course of the return journey, the husband having with him at the time a man employed to work on the farm, and some eggs which were to be sold or given away. Appellant did not accompany her husband to or from the farm. While title to the farm was in appellant, the clear and uncontradicted purport of the evidence is that it was under the control and management of her husband. When testifying for plaintiff, the hired man, although he knew that *419 appellant owned the farm, expressly referred to it as "Mr. Roehler's farm." Nothing appears to indicate that she was interested in its management or in any way profited from it, and to conclude from this record that it was in any sense operated by or for her would be to indulge in a mere guess or conjecture.
Nowhere is there evidence which would suggest any sort of control or right of control by appellant over her husband's physical conduct in the performance of services, or in any respect whatever — a factor which is essential to the existence of the relation of master and servant and liability flowing therefrom: see McColligan v. P. R. R. Co.,
In this state of the evidence, appellant is unquestionably entitled to final judgment. However, since no motion for binding instructions or for judgment n. o. v. was made, we are not at liberty to enter judgment for her: *420
Sulzner v. Cappeau-Lemley Miller Co.,
The judgments appealed from are reversed as to Mary Roehler, and a venire facias de novo is awarded as to her.