149 A. 168 | Pa. | 1930
Argued January 7, 1930. At about nine o'clock on the morning of May 1, 1925, plaintiff's husband, Charles A. Martin, while walking across Twenty-second Street at Cumberland Street, Philadelphia, was killed by Leon Lipschitz's automobile, northbound in the former street. The proof warranted a finding of negligence on part of the driver, Frank Jones, and this suit therefore was brought against Lipschitz, the controlling question being whether there was any submissible evidence that Jones was at the time engaged in the owner's business. At the trial the jury disagreed, and, later, the court in banc entered judgment for the defendant on the whole record, under the Act of April 20, 1911, P. L. 70, and plaintiff has appealed.
We must, therefore, assume the truth of the evidence for plaintiff and every inference in her favor that may properly be drawn therefrom. Even so doing, we are not convinced that the judgment was improperly entered. This car was kept by the defendant for his private use and the burden was on the plaintiff of showing that at the time of the accident it was being driven for him. Neither the defendant nor any of his family was in the car and the sole evidence tending to show his liability, aside from ownership of the car, was that of a police officer who talked with the defendant on the evening of the accident and who testified: "Mr. Lipschitz told me he was the owner of the car, he had given this man, who was in his employ at that time as chauffeur, he had taken him to New York City. The chauffeur brought him back; that night it was raining and the car got muddy. When he came back to his place of *214
business at 3004 North Twenty-second Street he told the chauffeur to take that car to the garage, have it washed and have that car brought back to him in the morning." The officer drew the conclusion that the accident occurred when Jones was delivering the car in the morning, but the defendant did not so state. The officer's testimony lacks the necessary details to fasten liability on the defendant. It fails to show where the garage was located or that the car was on the street between the garage and the defendant's home, or that in fact it was being driven from one to the other. Something more definite must be shown than that Jones was chauffeur for defendant and was driving his car north on Twenty-second Street. See Lotz v. Hudson,
Furthermore, while not considered in arriving at our decision, the situation is clarified by the uncontradicted evidence for the defense by which it appears Jones was employed as car washer in a public garage located near 4600 North Fifteenth Street, known as the Bellefield garage; that defendant had his home and store at 3004 North Twenty-second Street, where he kept his car in a private garage; that Jones had occasionally acted as his chauffeur and washed the car there; that on their return from New York, where Jones had driven the car for defendant, a day or two before the accident, he had requested permission to take the car to the Bellefield garage where he had better facilities for washing it and had promised to bring it back in the morning. In place of so doing, however, Jones, having worked there during the night, as was his custom, took the car at about seven o'clock a. m. and for a purpose of his own drove onto Oran Street to the home of Allen Hartison, then drove *215 Hartison on to Allegheny Avenue where the latter took a trolley car. Then, having picked up an acquaintance named Alexander, Jones drove to his own home near 1800 Ridge Avenue where he ate breakfast. Then, accompanied by Alexander, he drove to a speakeasy at 2125 Stewart Street where they drank whiskey and at about nine o'clock Jones, while driving the car north on Twenty-second Street, caused the accident. There is a dispute as to whether Alexander was then in the car and some slight uncertainty as to one or two other unimportant matters. It is entirely clear, however, that Jones worked at the Bellefield garage and was to and did take the car there for the sole purpose of washing it and took it out in the morning for his own convenience and a joy ride and drove many blocks south of the defendant's residence.
Again, the accident did not happen on any line of travel between the garage and the defendant's home, nor while the car was between the two nor moving from one to the other, but while it was five blocks south of the home and more than twenty blocks south of the garage. Moreover, Jones could have driven the car home from the garage in less than ten minutes, whereas he had been out with it for more than two hours and had disconnected the speedometer to conceal his joy ride. Unless the servant is at the time engaged in the master's business, the latter is not liable for the negligence of the former (Orluske v. Nash Pgh. Motors Co.,
Damage done through the instrumentality of a private car raises no presumption against an absent owner and one who charges him with liability therefor must prove that the car was being operated for him, and the operator must, in doing the wrongful act, occupy toward the owner the position of agent or servant. For example, an absent father is not liable for damages caused by his car when negligently driven by his son, on the latter's business or for his pleasure (Piquet et ux. v. Wazelle,
The relation of master and servant between the defendant and Jones, only occasional, having been broken when he took the car and drove it for his own purpose, was not resumed until he had returned it to its proper place. That Jones was headed in that direction at the time of the accident is not important. We so hold in Solomon v. Com. Tr. Co. of Pgh.,
This was a most distressing accident, but one for which the defendant cannot be held liable.
The judgment is affirmed.