82 Pa. Super. 129 | Pa. Super. Ct. | 1923
Argued October 8, 1923. This is an appeal from a judgment of the court below in favor of a child three years of age, for personal injuries sustained when run over by a business truck belonging to the defendant, upon the sidewalk of Somerset *131 Street, in the City of Philadelphia. That there was negligence in the operation of the truck was not disputed upon the trial. The defense set up was wholly outside the circumstances detailed by plaintiff's witnesses, it was purely and distinctly affirmative in character and the burden of establishing it rested on the defendant. It was, that at the time of the accident, the driver of the truck was not acting within the scope of his employment by the defendant. The appellant contends that, because the evidence produced by the defendant, tending to establish that the driver of the truck had departed from his line of duty and was using the vehicle for purposes of his own, was uncontradicted, the court should have withdrawn the case from the consideration of the jury and given binding instructions in favor of the defendant.
The evidence produced by the plaintiff disclosed that the vehicle was a business truck which bore the name of the defendant, and it was formally admitted by the defendant upon the trial that the truck "was owned by the defendant, the Penn Motors Corporation. It is further admitted that the driver of this truck was employed by the defendant, the Penn Motors Corporation." Where, as here, the car is used for business purposes, the fact that it bears the name of the defendant and is driven by its employee, is sufficient to raise a presumption that it was driven by the employee in the line of his duty. "In this respect there is a distinction between pleasure cars and business trucks. The former are not designed primarily for use in connection with the business of the owner and usually bear no outward evidence of ownership or use to which they are being put. They may be driven by the owner for his pleasure, but frequently are driven by members of his family or friends or employees of the owner for their individual benefit or pleasure....... 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 *132
prove the exceptional case where the use was, in fact, for other purposes not connected with the defendant's business or for his benefit": Sieber v. Russ Bros. Ice Cream Co.,
The judgment is affirmed.
