276 Pa. 340 | Pa. | 1923
Opinion by
Plaintiff’s husband was instantly killed by an automobile delivery truck belonging to defendant, a manufacturer and vendor of ice cream. At the trial plaintiff offered in evidence that part of the statement of claim
Under decisions of this court the evidence offered by plaintiff was ample to require submission of the case to the jury. In Williams v. Ludwig Floral Co., 252 Pa. 140, evidence that the auto delivery car inflicting the injury bore the name of defendant and was driven by the secretary of the company was held ample to warrant an inference that the truck at the time was operated in connection with defendant’s business; although the accident happened on Sunday it appeared defendant’s store was open for business on that day and the car traveling from the direction of the store. In O’Malley v. Public Ledger Co., 257 Pa. 17, evidence that the automobile which caused plaintiff’s injury bore the name of defendant, the publisher of a newspaper, and contained bundles of newspapers intended for delivery to customers, was held sufficient proof that the driver was the employee of defendant and engaged in the business of his employment. In Holzheimer v. Lit Bros., 262 Pa. 150, we held a truck bearing the name of defendant sufficiently raised a
The court below in granting a nonsuit relied on Farbo v. Caskey, 272 Pa. 573, in which we held there could be no recovery where plaintiff merely averred the driver of the vehicle was defendant’s agent, without stating he was engaged in the performance of defendant’s service at the time of the accident. There was nothing in the evidence to show the driver was actually so engaged. The case was tried, however, on the theory that the averment in the statement of claim that defendant was the owner of the car in question being undenied in the affidavit of defense sufficiently established a prima facie case for plaintiff. The statement of claim was not offered in evidence nor was other evidence of ownership or agency of the driver given, consequently, the record failed to make out a prima facie case in favor of plaintiff. In the present case plaintiff followed the course suggested in Buehler v. U. S. Fashion Plate Co., 269 Pa. 428, and supplied evidence lacking in Farbo v. Caskey.
We affirm the rule that in cases such as the present the burden is on plaintiff to prove defendant’s ownership of the car, that the driver was his servant and that the servant was at the time engaged in the master’s business:
On the other hand, business trucks are primarily designed and are generally used for the business of the owner, and, in case of accident, it is not unreasonable to require the owner, whose name appears thereon, to prove the exceptional case where the use was, in fact, for other purposes not connected with defendant’s business or for his benefit.
This information is peculiarly within the possession of defendant and if, as a matter of fact, the driver was using the car without authority and for purposes of his own, an undue burden is not cast on defendant to require him to show these facts after plaintiff has offered evidence of ownership of the car and its use apparently in connection with defendant’s business. We have here a
The judgment is reversed and a new trial ordered.