200 A. 165 | Pa. Super. Ct. | 1938
Argued April 21, 1938. This is an action of trespass for personal injuries sustained by Frances Haley, a minor, brought by her parents, James Haley, Jr., and Amanda Haley, her next friends, and in their own right. The defendants in this case are Lewis P. Litzinger and Alice Litzinger, his daughter. *561
On the evening of February 28, 1933, Frances Haley, then eight years of age, was roller skating in the company of several other small children on an asphalt portion of East Brady St. in the City of Butler. An Austin automobile, driven by Lucille Litzinger, daughter of Lewis P. Litzinger and sister of Alice Litzinger, defendants, and having as an occupant, Ida Litzinger, another daughter and sister, came east on Brady St. The car struck Frances Haley, the minor plaintiff.
The jury rendered a verdict against both defendants, in behalf of the child, and in behalf of the parents for expenses incurred. The court below granted defendants' motion for judgment n.o.v. This appeal followed.
Appellants contend that the car that struck the minor plaintiff was a "family car" used by the members of the family for the benefit of the family and in furtherance of the business of the father, so that the owner or owners of the automobile may be charged with the tort of the driver.
The evidence indicates that the father, Lewis P. Litzinger, purchased the car in 1930 for his daughter, Alice. However, an insurance policy contract, covering the car and signed by Mr. Litzinger, represented that he and his daughter were the exclusive owners. The policy further stated that the car was to be used for "private use and business calls, including commercial delivery without alteration in chassis or body." Nevertheless, this particular car, being one among several in the family, was at all times subject to the orders and control of Alice. It appears that each of the other daughters had her own car, as did Mr. Litzinger, but that Lucille's car was out of order on the day of the accident.
On the day of the accident, Lucille, daughter and sister of the appellees, who was living at home, received permission from Alice to use the car. At the close of school, Lucille, having finished her teaching for the *562 day, called for another sister, Ida, who assisted her father occasionally at his office. The two then started off, and according to the testimony of Lucille, the driver, they were on the "way home going to Chicora (to attend a church dinner) but had no intention of stopping at my own house" when the accident occurred. Mrs. Haley, mother of the injured child, testified that Lucille had stated to her after the accident, that the girls were on their way home from school. Mrs. Huselton, into whose house the child was taken after the accident, corroborated her.
In the case of Piquet et ux. v. Wazelle,
In the case of Warman v. Craig,
In Piquet et ux. v. Wazelle, supra, the court said, at pp. 467, 468: ". . . . . . if it appears that the automobile was, at the time, being devoted to the master's business, either by a member of the family or a chauffeur under his direction, express or implied, a recovery may be had: Moon v. Matthews,
In the instant case, a careful reading of the record in the light most favorable to plaintiffs fails to disclose that the father, Lewis P. Litzinger, purchased the car involved in the accident for the use, comfort, or convenience of the family. The testimony of Alice was to the effect that the car was intended for her personal use and enjoyment and was so used; and further, that her "father had nothing to say about who should take the car out." Likewise, there is no evidence to support appellants' contention that Lucille was operating the car with the permission, expressed or implied, of her father. Alice, alone, was asked and gave permission to Lucille to use the car on the day the accident occurred. It does not appear that Mr. Litzinger was even aware that Lucille and Ida were using this car. Nor is there any evidence in the record to support a finding that Lucille was operating the car either in furtherance of her father's business or interest, or on a household errand or for a family mission. It is not pretended that the car was being operated in furtherance of Alice's business or interest, but it appears that her sisters were using the car for their personal convenience. Under the circumstances, neither the father nor Alice can be held liable and the judgment entered should be sustained.
Judgment affirmed. *565