198 A. 66 | Pa. | 1938
There is but one proposition open in this action of trespass, brought by plaintiff to recover damages from defendants, who are partners, for injuries received by her when she was struck by a truck, admittedly used generally by defendants in their business, although registered in the name of but one of them, and that is, whether the operator of the truck was engaged in their business at the time he inflicted the serious injuries on plaintiff.
Negligent operation of the truck is not denied. It is claimed, however, by defendants that it was lent to the operator, on the evening of the accident, and was being used by him on his own account and in nowise for them.
To establish that the driver of the truck was the servant of defendants and engaged in their business at the time, they were called by plaintiff as under cross-examination. They said the truck was lent to the driver on *326 the evening in question and that he was engaged upon an enterprise of his own. They admitted he was at times employed by them and that he lived with one of them, whose daughter he later married. Their testimony is characterized by the trial judge, in the opinion he filed, as unusually evasive. He states they repeatedly contradicted their own testimony, which the record discloses to be the fact, at first denying that they were partners and subsequently admitting it, equivocating on the question whether the truck was used in the business, and then conceding that it was; one of them, who saw the truck when it left their premises saying that it was empty and later admitting that it had stove fire brick in it (they were dealers in stoves) which they claimed they had given to a sister of the driver, setting up that he was transporting it to her, to be put into a stove which they alleged also was a gift to her. The court concluded defendants and the driver testified falsely, and that their credibility on the controlling questions in the case, whether the driver of the car was at the time their servant and engaged on their business, was for the jury. It is the contention of appellants that neither of these two elements, essential to recovery, was proven, that the endeavor to establish them by calling defendants under cross-examination failed, and that plaintiff, having called them as under cross-examination, and not having contradicted them, is bound by their denial of the two essential facts and therefore did not make out her case.
Where the vehicle involved is a commercial vehicle, as distinguished from a noncommercial one, in the absence of other evidence, it will be presumed that it was being operated at the time on its owner's business: Williams v. Ludwig Floral Co.,
There are cases where the testimony of defendants, in denial of employment and of engagement on their business of the operator of a business truck belonging to them given in plaintiff's case under cross-examination, has prevented recovery as a matter of law (Felski v. Zeidman,
That a litigant is not bound by the testimony of a witness whom he calls as under cross-examination and does not contradict, where the statements of the witness in the opinion of the trial judge bear the stamp of incredibility, is apparent from what was said in Burke v. Kennedy,
The true rule is, where plaintiff in his own case calls defendant as under cross-examination to prove ownership, agency and use of the vehicle in defendant owner's service, and does not contradict him, and the testimony of defendant in the opinion of the trial judge is truthful, plaintiff is bound by the testimony, but where in the opinion of the trial judge the testimony is false, plaintiff is not bound thereby and its credibility is for the jury.
The judgment is affirmed.