94 Pa. Super. 440 | Pa. Super. Ct. | 1928
Argued October 3, 1928.
Plaintiff's automobile, while parked in front of his home, 1220 West Tioga Street, Philadelphia, about 9:40 o'clock in the evening, was run into by a drunken chauffeur driving defendant's automobile, and damaged. No one but the driver was in the defendant's car at the time of the accident. The ownership of the car, the negligence of the driver, and his general employment as chauffeur of the defendant were admitted, but it was denied that at the time of the accident he was engaged on the business of the owner or acting within the scope of his employment. As the defendant was not in the car at the time, the burden of proving that the driver was then engaged on her business or acting within the scope of his employment rested on the plaintiff: Curran v. Lorch,
The driver, Leibrandt, was called by the plaintiff and was the only witness to prove his agency for the defendant at the time of the collision. His story was as follows: He left the defendant's home on Race Street about 6:00 o'clock in the evening, after telling her husband (now dead), that he was going to the garage where the car was kept (34th and Powelton Avenue), for `parts.' What `parts' he went after, he did not say. The garage did not have the parts, so he went to the West Philadelphia Buick Co., near 49th and Chestnut Streets, and found it closed. He then drove six and three-quarter miles northeastwardly to an unnamed accessories store at Broad and Tioga Streets —, not however, the North Philadelphia Buick Station —, and got the parts and put them in the car. Just why he drove that distance to that particular store, does not appear, unless it may be inferred from his subsequent conduct. After securing the parts, instead of taking the car to the garage at 34th Street and Powelton Avenue, he drove it to a restaurant in the neighborhood of 11th Street and Erie Avenue where he got something to eat and some liquor to drink. He had a couple of drinks and stayed there about an hour. He was asked the exact locality of the place, but said that was his business. Plaintiff's attorney objected to further questioning along that line and the court sustained the objection; saying he would `eliminate' from the case, where the witness got the liquor and who was with him there. After having drunk sufficient liquor to intoxicate him, or `dope' him, as he expressed it, he got into the car and while going west on Tioga Street collided with plaintiff's car, and then went to York Road and Germantown Avenue. What he did there or why he went there he did not say. *443
Defendant's liability rested on whether the evidence showed that the driver of her car was at the time of the collision engaged on her business or acting within the scope of his employment. If he was authorized by her to go to Broad and Tioga Streets for `parts' for the car, or in good faith, in furtherance of her interests, went there after them, a slight deviation from his route in returning from the accessories store to the garage would not amount to a break in the employment such as would relieve her of liability for his negligence: Luckett v. Reighard,
It was, therefore, incumbent on the plaintiff, in order to charge the defendant with liability, to go into the facts and circumstances fully in order that a jury, or in this instance, the judge, might be able to tell within which class of decisions the case fell. As was said by the Supreme Court in Lotz v. Hanlon,
Fortunately, by referring to a city map we are able to get enough information to make the situation intelligible.
The garage where the car belonged was at 34th Street and Powelton Avenue, four and three-quarter miles southwest of Broad and Tioga Streets, where *445 the driver secured the `parts.' Instead of going there he went in the opposite direction, northeastwardly, about half a mile, to a restaurant or saloon in the neighborhood of 11th Street and Erie Avenue and stayed there about an hour eating, and drinking intoxicating liquors. It was not shown that this trip had anything to do with his employer's business or was otherwise than a jaunt on his own business or pleasure. After becoming intoxicated there and while traveling west on Tioga Street, but east of Broad Street, (between 12th and 13th Streets) and therefore not within any route that he could take in going from the accessories store to the garage, he collided with plaintiff's car.
We can see no distinction between this case and Solomon v. Commonwealth Trust Co., supra. There, the chauffeur in obedience to instructions from his mistress, who lived in East Pittsburgh, took the car to a blacksmith shop for the purpose of having repairs made to it. After these were made, instead of returning the automobile to the garage, he and a companion, after taking a drink of brandy at a nearby saloon, started with the car in a direction different from that leading to the garage, and without any intention of going directly to it. They started for and went to the Allegheny River to look at its swollen waters, and did so from the Sixth Street bridge, which they crossed going over to Allegheny. While there they each took another drink. Shortly afterwards they recrossed the bridge and having returned to Pittsburgh and taken a third drink, started for the garage, on the way to which the automobile ran into a wagon. The Supreme Court said, speaking through Chief Justice BROWN: "It was incumbent upon the plaintiff to show, by direct or circumstantial evidence, not only that Clay was the servant of Mrs. Reymer, but that he was on an errand for her or engaged in *446
her business at the time he drove the automobile into the wagon: Lotz v. Hanlon,
This case differs from that one only in that the driver here admitted having taken two drinks instead of three; that he spent an hour in a saloon half a mile away instead of driving about the city; and that in this case the accident occurred before he had even retraced his journey to the point of diversion from his employer's business. Otherwise the facts are in substantial accord.
The seventh and eighth assignments of error are sustained. The judgment is reversed and is now entered for the defendant.