276 Pa. 107 | Pa. | 1923
Opinion by
Defendants appeal from a judgment on a verdict recovered against them by plaintiff for damages sustained by him in a collision between an automobile in which he was riding and one belonging to them. In the disposition we shall make of the case, the circumstances of the accident become unimportant.
Defendants were dealers in automobiles and as such possessed dealer’s license plates. They owned the second-hand automobile which collided with plaintiff’s car. One Lyda was in their employ and had taken the car, which was out of condition, to his home for the purpose of putting it in running order, with the understanding that if he did so, defendants would sell it to him for $175. He had the automobile in his possession for three or four months prior to the day of the accident when he paid appellants $25 on account of the purchase price and with, their permission obtained the dealer’s license plates belonging to them to enable him to operate it to see whether it would run satisfactorily. Appellants refused to let him drive the car himself and the arrangement was made that it should be driven by another of their employees named Seibert; while the latter was driving it,
The trial judge made the case turn, not on the relation of the driver of the automobile to appellants, or whether he was engaged at the time on their business, but on the circumstance that their license plates had been put on the car with their knowledge and consent. He instructed the jury (first assignment of error), “The defendants did not have any general license plate at all and don’t claim to have any general license plate; and, therefore, it is not a question, as I look at it, whether these parties were on the business of this defendant or not. That is not the question in this case at all. The question in this case is, did these men, who had that machine out that night, have this license on that machine with the knowledge and consent of these defendants. That is the question in the case, and, if you find that they did have it there on the machine, with the knowledge and consent of one of these defendants, — it was a partnership and both were bound by it, — then the defendants are responsible for whatever happened in the driving of that machine that night.” The court accentuated this view of the case by the further instruction: “It does not make any difference whether the defendants owned that car or not if they allowed their license plate to be put on it. If you find they allowed a license plate to be put on that car that night, they are responsible for what happened, if there was negligence in the operation of the car.”
The trial judge relied on the 7th section of the Motor Vehicle Act of June 30, 1919, P. L. 678, for the position he thus assumed; it reads, “No person or persons shall use or permit the use of the plates issued under a dealer’s registration on any motor vehicle other than those owned by such dealer and operated by such dealer or his employees, or for any purpose other than demonstrating said vehicle to a prospective purchaser, or testing, or re
Appellants had the right to permit Seibert as their employee, they being the owners of the car, to operate it with their license plates; having the right to drive it under their license for the purpose of demonstrating or
It is manifest, we think, that, in addition to showing the circumstance of the license plates on the car with the knowledge and consent of the defendants, it was incumbent on plaintiff to show, either that the car was on the business of defendants when the accident occurred or that Seibert at the time he was driving it was their agent or employee; particularly is this so when we consider the unusual time of night at which the car was being driven and that defendants’ consent to the use of the plates was for demonstration or testing purposes. The circumstances that Lyda, the prospective purchaser, was one of defendants’ employees and the driver his coemployee operating the car after usual working hours in pursuance of a request made by Lyda, are most material in determining Seibert’s relation to appellants at the time of the accident. The court was in error in saying to the jury that his negligence fixed defendants with responsibility, provided they had permitted the use of their license plates on the car, and that it was not a question in the case whether the occupants of the car were on defendant’s business or not. In Markle v. Perot, 273 Pa. 4, we determined that the liability of the owner of a motor vehicle, for the tortious act of the driver of his car, which caused injuries to a third person, rests either on the relation of master and servant or of principal and agent, between the owner and the driver. This rule was also announced in Farbo v. Caskey, 272 Pa. 573. In Treon v. Shipman, 275 Pa. 246, we said: “In order to fix liability
As that part of the charge covered by the first assignment of error does not embody a correct statement of the law, in that it eliminated entirely, from the jury’s consideration, the question whether the car was being operated on the business of the defendants, and took no account of the relations of Seibert to the defendants in the peculiar circumstances under which he was operating it, the first assignment of error must be sustained.
The judgment is reversed with a new venire.