17 A.2d 669 | Pa. Super. Ct. | 1940
Argued October 7, 1940. The appeal in this action of attachment sur judgment questions the refusal of the lower court to enter judgment in favor of the garnishee notwithstanding the verdict.
In 1935 the defendant Kressman, then the owner of a number of trucks, contracted with Gorberg the present garnishee to haul his produce at a package rate. In 1937 a judgment for $1,500 was entered by the plaintiff Hollander against Kressman and his trucks were seized on execution and were sold in January 1938. On January 28, 1938 plaintiff served Gorberg with the *34 attachment sur judgment involved in this appeal. From 1935 until the time of the attachment Kressman without question, was an independent contractor but that relationship with Gorberg ceased when he was deprived of the means of further performance by the loss of his trucks. Following the attachment for a period of about four weeks, Gorberg's produce was hauled in trucks owned by one Messina and Gorberg paid Messina weekly by check at the same package rate formerly paid Kressman. During this period Kressman either drove or provided drivers for Messina's trucks and by an agreement between them, Messina retained $25 weekly from the proceeds of Gorberg's checks for the use of the trucks and paid Kressman the remainder. There is no evidence that Gorberg was a party to this arrangement between them and Gorberg denied knowledge of it. Messina withdrew his trucks from Gorberg's service after a few weeks and thereafter Gorberg hired a number of other truckers to do his hauling. This service was unsatisfactory and in March 1938 Gorberg bought a number of trucks and then hired Kressman and one Merlino as drivers to operate them and to do his hauling at weekly wages of $40 each. Maintenance of the trucks and operating costs were borne by Gorberg. Kressman's wages were later increased to $60 per week and he continued in the employ of Gorberg from March 28, 1938 to the date of trial.
It is plaintiff's theory that the amounts received by Kressman were not in fact wages free from attachment, but were payments made to him as an independent contractor and as such, when attached, became the property of plaintiff. The trial of that issue resulted in a verdict for plaintiff against the garnishee in the sum of $1,872.36, the then amount of plaintiff's judgment against Kressman.
If Kressman was an independent contractor, all moneys due him under his contract with Gorberg after the date of service of the attachment to the date of *35
trial were bound thereby. Huck-Gerhardt Co. Inc. v. Davies etal.,
Gorberg in answer to interrogatories, averred that he did not at any time have funds in his hands belonging to Kressman which were subject to attachment. The same defense was interposed here. When the garnishee in an attachment pleads nulla bona, the burden of showing assets in his hands is on the attaching creditor.Caldwell v. Coates,
It is clear from a reading of the testimony that plaintiff has failed to meet the burden of proof upon him. There is not even a scintilla of direct evidence that at the time of the attachment the garnishee owed Kressman anything; on the contrary the uncontradicted testimony, elicited from Gorberg when called as on cross-examination, (binding upon the plaintiff, Krell v.Jacobson,
The jury in this case were permitted to base their verdict upon possibilities or at most upon a finding of the opportunity for collusion between Kressman and Gorberg. This is not enough. A verdict must be supported by facts or by conclusions reasonably deducible from them; it cannot be based upon guess or conjecture.Bradley et al. v. Rhodes,
Judgment reversed and directed to be entered in favor of the garnishee n.o.v. *37