5 A.2d 565 | Pa. | 1939
This appeal is from an order of the court below taking off a compulsory nonsuit. There is no appeal from such an order and therefore the appeal must be quashed: Dellacasse v. Floyd,
The quashing of the appeal means that the case may be retried. If the testimony on a second trial should be the same as on the one we are reviewing, such retrial would be a useless proceeding. The nonsuit was removed because of a mistaken view of the law by a majority of the court below; Judge CARR, who dissented, had the right view.
Defendant owned the automobile which, it is claimed, injured plaintiff while it was being driven by defendant's adult son. The car had been purchased by the father for the pleasure and convenience of the family. The father was unable to drive the car. On the day of the occurrence out of which this action grows, the son, who had a driver's license, asked his father for the use of the *224 automobile to go to Uniontown in order to make arrangements for his approaching marriage and the father allowed him to use the vehicle to make the trip. During its progress the collision occurred in which plaintiff was injured.
No agency of the son for the father or relation of master and servant was created under the circumstances. The son operated the car on his own account and for his own purpose.
The cardinal principle applicable to the factual situation here presented was succinctly stated by the late Mr. Justice SADLER in Piquet v. Wazelle,
The cases of Moon v. Matthews,
Appeal quashed at appellant's cost. *225