Opinion
May 27, 1935.
June 29, 1935.
Negligence — Evidence — Burden of proof — Ownership and agency — Presence of dealer's license plates on truck — Contributory negligence of guest in car — Charge.
1. Where, in a motor vehicle collision case, the defendant files an affidavit of defense denying ownership of the motor vehicle alleged to have caused injury to plaintiff, and denying that its driver was its agent, the burden is upon the plaintiff to show not only that the motor vehicle belonged to the defendant, but also that it was engaged in and about its business at the time the injury occurred. [411-12]
2. In an action for injuries, in which the evidence disclosed that the truck which caused injury to plaintiff contained dealer's license plates of another state, issued to defendant, it was not error for the trial court to refuse to allow plaintiff's counsel to argue, over the objection of defendant, that inasmuch as the truck contained the dealer's license plates, the jury should take that into consideration in determining whether the truck belonged to defendant, where such assumption was not sustained by the law or the facts. [415-16]
3. In an action for injuries sustained by plaintiff, a passenger in a car which collided with a motor vehicle alleged to have caused the injuries to plaintiff, it was not reversible error for the trial judge to charge, in view of the evidence, that a guest in a car is not responsible for the negligence of the driver, unless it appears that in some way the guest was directing the driver, that if a known danger appears and the guest sees it and does not warn the driver of the car of what he sees, the former is negligent, that if plaintiff's testimony as to the capacity of the lights of the car in which he was riding was true, then the driver was operating with improper lights, and that it was strange, if the lights of the car were sufficient, that plaintiff did not see defendant's car, and that if plaintiff contributed in any respect, by his negligence, to the accident, he could not recover. [413-16]
Argued May 27, 1935.
Before SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.
Appeal, No. 4, May T., 1935, by plaintiff, from judgment of C. P. Dauphin Co., June T., 1933, No. 346, in case of Sherwood W. Little v. Four Wheel Drive Sales Company et al. Judgment affirmed.
Trespass.
The facts are stated in the opinion of the lower court, WICKERSHAM, J., as follows:
In this action the plaintiff seeks to recover from the defendant damages for personal injuries received when an automobile in which plaintiff was riding ran into the rear of a truck stopped on the River Road north of Harrisburg, and which was being operated at the time by the defendant, H. Hezlep Mitchell. The truck bore District of Columbia license plates D-2365. The jury rendered a verdict in favor of the defendants whereupon the plaintiff moved for a new trial for various reasons which we will hereafter discuss.
The plaintiff tried his case upon the theory that, the truck driven by Mitchell containing District of Columbia dealer's license plates, the presumption would arise that the truck was owned by the defendant, Four Wheel Drive Sales Company.
We think counsel for the plaintiff confused the issue involved in this case which was that because of the negligence of the defendant, Mitchell, plaintiff's injury occurred. This is not a prosecution charging the defendant, Mitchell, with a violation of the Motor Vehicle Code of Pennsylvania; we were not trying that issue in the instant case. Counsel relied upon the decision of the Supreme Court in Reed v. Bennett, 276 Pa. 107. What the Supreme Court decided in that case was as follows:
"All that a license tag on a motor vehicle implies under the Act of June 30, 1919, P. L. 678, is prima facie ownership, and its presence in itself does not establish liability for negligence.
"In order to fix liability for an accident resulting from an automobile collision, it is necessary for plaintiff to show, not only that the car belonged to defendant, but that it was engaged in and about his business by him or by an employee or agent at the time the injury occurred." What was said by Mr. Justice SCHAFFER, writing the opinion of the Supreme Court (see page 111) does not apply to the instant case. The Motor Code of the District of Columbia was offered in evidence in which we found no restrictions such as are contained in the Motor Code of Pennsylvania.
It was testified by Straw, a witness for the plaintiff, that immediately after the accident the defendant, Mitchell, said "Here is my name and address and the company I drove for," which statement was denied by Mitchell; and this testimony was submitted to the jury. The verdict being for the defendants clearly demonstrates that the jury did not believe Straw's testimony.
The defendant, Four Wheel Drive Sales Company, filed an affidavit of defense denying ownership of the truck and denying that Mitchell was its agent. The burden was therefore upon the plaintiff to show not only that the truck belonged to the defendant, Four Wheel Drive Sales Company, but that it was engaged in and about its business at the time the injury occurred: Martin v. Lipschitz, 299 Pa. 211; Wesolowski v. Ins. Co., 308 Pa. 117, and many other cases which might be cited. We think the plaintiff utterly failed to establish that the defendant, Four Wheel Drive Sales Company, was the owner of the truck at the time the accident occurred and that at the time the accident occurred the defendant, Mitchell, was the servant of the Four Wheel Drive Sales Company and engaged in the business of that company. On the contrary, the verdict of the jury clearly establishes those facts against the contention of the plaintiff.
Furthermore, the Four Wheel Drive Sales Company offered in evidence a certified copy of the conditional sales docket of Fayette County at Uniontown, which showed that the defendant, Mitchell, purchased the truck he was driving by a conditional sales agreement for the truck in question from Four Wheel Drive Sales Company to Mitchell, which was filed as required by the Conditional Sales Statute of Pennsylvania, several weeks before the accident. The defendant, Mitchell, identified the conditional sales contract which he had signed when he purchased the truck prior to the accident, and the notes he gave to evidence the payments. He further testified that he had driven the truck from Uniontown to New York loaded with bathtubs from Richmond Radiator Company, and that on the return he had a truck loaded with 4 1/2 tons of lima beans which he was transporting from Philadelphia to P. H. Butler warehouse in Pittsburgh. He testified that the transportation charges belonged to him; that he was not in the employ of the Four Wheel Drive Sales Company; that it had no interest of any kind in the trip he was making; and no control whatever over the truck.
This testimony, documentary and otherwise, was believed by the jury, and its verdict for the defendants established these facts. Under the circumstances we could not have affirmed the first, second, third, fourth and fifth requests of counsel for the plaintiff for instructions to the jury at the trial, and the first, second, third, fourth and fifth reasons alleged for a new trial are therefore overruled.
We instructed the jury very carefully with respect to the alleged negligence of the defendant, Mitchell, and find no error in our charge.
The sixth reason for a new trial alleging that we erred in our charge to the jury on the point of contributory negligence, must also be overruled. We have reexamined our charge relating to the question of contributory negligence and find no error in it.
The seventh reason for a new trial alleges that we did not make sufficiently clear to the jury that whatever negligence the driver, Straw, may have been guilty of could not be imputed to the plaintiff who was merely a guest and who did warn the driver, Straw, to watch out as soon as plaintiff could see that watching out was necessary. What we said to the jury in this respect appears in the record of our charge beginning on page 108, from which we quote:
"It is a well established principle of law that a guest in a car is not responsible for the negligence of the driver, unless it appears that in some way the guest was directing the driving, as, for instance, when we go out with a friend, or our wives, and they are telling us how to drive, they are guests who still have something to do with the driving of the car, but there is no evidence here that the plaintiff was paying any attention to the driving of the car, and perhaps he was not required to. Nevertheless, if a known danger appears and he sees it and does not warn the driver of the car of what he sees, then he would be guilty of contributory negligence. The plaintiff cannot recover in this suit if he has done anything negligently which contributed in any way to this accident. He testified that he thought these lights threw a gleam of only thirty or forty feet, but he never drove a car and perhaps he was only guessing; but, assuming that to be true, then Straw was driving with improper lights, with illegal lights, because they must throw a gleam or glow two hundred feet ahead, under the act of assembly. If they did throw a light two hundred feet ahead, as testified by Straw, himself, just at the close of his testimony, then why did not Straw and the plaintiff see this truck before they were within twenty feet of it? If they were not looking, if the plaintiff was not looking or paying any attention to the road ahead of him, it may well be that he was guilty of contributory negligence, and that is for you, we express no opinion about it. We leave that to you for your consideration, but it seems strange that the plaintiff would not have seen this truck if the lights threw a gleam two hundred feet ahead, but we express no opinion about that. If you find that he contributed in any respect, by his negligence, to this unfortunate accident, he cannot recover from either party."
We do not see what more we could have said. We think the plaintiff's rights are safeguarded by our instructions to the jury. If it be true that the lights on Straw's car threw a gleam only thirty or forty feet ahead, and it appeared from the evidence that the plaintiff was riding with Straw from the Mosque of the Nobles of the Mystic Shrine on Division Street to Front Street, several squares, and then a mile up Front Street to the place where the accident occurred, without warning Straw that his lights were not throwing the gleam required by the act of assembly, then we think the plaintiff was negligent in not warning Straw of this fact. But if Straw's final testimony was true that the lights did cast a gleam two hundred feet in advance of his car, then why was it that the plaintiff, who testified that he was looking ahead, did not see the truck of the defendant, Mitchell, with which they collided, until they were within twenty feet of it? And then, and then only did the plaintiff warn Straw to "look out." We find no substantial error in the charge in this respect and this reason for a new trial is also overruled.
In the eighth reason for a new trial it is alleged:
"8. The court erred in interrupting the argument of counsel for plaintiff to the jury and deciding that counsel could not proceed with his argument. This was extremely prejudicial to the plaintiff's entire case. Counsel for the defendant have argued to the jury by the permission of the court the very question which counsel for the plaintiff was starting to argue when the court interrupted and commanded him to cease and not proceed with any such argument. Said argument stated in brief terms was that the defendant-corporation could not violate the express mandate of the law by permitting the unlawful use of its dealer's license plates and escape the consequences which flow from such violation."
We think it is only necessary to read the controversy between counsel for the defendant, Four Wheel Drive Sales Company, and counsel for the plaintiff, as found in the record beginning at page 96 and ending at page 101 thereof, to understand the contention of counsel for the plaintiff and the objection to his argument by counsel for the defendant. Counsel for the plaintiff insisted on arguing to the jury that inasmuch as the truck driven by Mitchell contained the dealer's license plates of the District of Columbia, the jury should take that into consideration in determining whether the truck with which Straw's car collided causing the injury to the plaintiff belonged to the Four Wheel Drive Sales Company. Counsel for the defendant objected to this argument. We sustained the objection. After considerable discussion we informed counsel for the plaintiff that if Mr. Hull would withdraw his objections the court would permit counsel for the plaintiff to proceed with his argument. Counsel for the defendant refused to withdraw the objection and we think it was sound, as we have indicated in this opinion. Certainly we could not permit counsel for the plaintiff to argue an assumption to the jury not sustained by the law or the facts, over the objection of counsel for the defendant. This reason for a new trial is overruled.
The ninth, tenth and eleventh reasons for a new trial being merely formal, are overruled. We are satisfied with the verdict rendered by the jury. We think it must stand. In conclusion, counsel for the plaintiff refers to a decision of the Supreme Court of Massachusetts. There does not appear to be, nor has our attention been directed to any decisions of other states following the conclusion reached by the Supreme Judicial Court of the State of Massachusetts; therefore we cannot follow it, but must be controlled by the decisions of our own Supreme Court.
And now, August 27, 1934, the motion of the plaintiff for a new trial is overruled, and judgment may be entered upon the verdict upon the payment of the jury fee.
Verdict and judgment for defendants. Plaintiff appealed.
Error assigned, among others, was refusal of new trial.
Paul A. Kunkel, for appellant.
Arthur H. Hull, of Snyder, Hull, Hull Leiby, for appellee.
The judgment of the court below is affirmed upon the opinion of Judge WICKERSHAM.