The opinion of the court was delivered by: KALODNER
This matter came to trial before me without a jury by agreement of the parties.
On August 2, 1941, Emil O. Young, together with his wife Pauline, and two minor children, Doris and Raymond, were occupants of an automobile (operated by Emil), which was travelling south on Route 611 near Portland, Northampton County, Pennsylvania, when it was struck by a tractor which was proceeding in a northerly direction on the same road.
The evidence clearly established that the accident was due to negligence of the operator of the tractor. However, in order for the plaintiffs to recover from the defendant they must discharge the burden of proof resting upon them to establish either by direct evidence or by reasonable inference that at the time of the accident the tractor was being used on the defendant's business.
As to the question of liability:
The evidence disclosed that on the side of the door of the tractor appeared the name "Wilky Carrier Corp." and that above on the panel of the door appeared the name "Earl L. Welty". The testimony also established that Welty was the owner of the vehicle and that at the time of the accident it was under lease by Welty to the defendant.
The plaintiffs contend that the appearance of the defendant's name on the tractor raises the presumption that it was the owner of the tractor and that the tractor was on its business at the time of the happening of the accident.
The defendant's position is that no such presumption can exist in this case because (1) the names of both Welty and the defendant appeared on the tractor, and (2) that the evidence in fact established that Welty was the owner of the tractor.
Counsel have not cited, nor have I found a Pennsylvania case where two names appeared on the vehicle as in this case. However, I am of the opinion, after considering the rationale of the Pennsylvania presumption of ownership and agency where a single name appears on a commercial vehicle, that in this case there is a presumption of ownership and agency as to both the defendant and Welty. The rationale of the Pennsylvania rule was succinctly stated in Readshaw v. Montgomery, 1933, 313 Pa. 206 at page 208, 169 A. 135, at page 136. Said the Court: "The rationale of this rule is that such facts give rise to an inference that the vehicle was being used for the purposes of the defendant. Business vehicles are generally used in the business of the owner, and when it is shown that the vehicle was a business vehicle and that it bore the trade name of the defendant, it is a fair inference that the vehicle was owned by the defendant, that the driver was his servant, and that it was being used for the purposes of defendant's business. Where, upon a consideration of plaintiff's whole case and anything in defendant's case which might help to create such an inference, no such inference can arise, the doctrine of the cases cited has no application. * * *"
In the instant case the plaintiff suffered a voluntary dismissal under Rule 41 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, as to Welty, who had originally been joined as codefendant with Wilky Carrier Corp. Judge Kirkpatrick allowed the voluntary dismissal over the objection of the defendant. That leaves for my determination the effect of the presumption of agency and ownership as to the defendant by reason of the fact that its name appeared on the vehicle.
As to defendant's contention that it has proved Welty was the owner of the vehicle, under the Pennsylvania decisions the presumption is sufficient to take the case to the jury even though the defendant produces uncontradicted evidence that it did not own the vehicle in question ( Hartig v. American Ice Co., 1927, 290 Pa. 21, 137 A. 867), or that the driver was not its employee ( Holzheimer v. Lit Bros., 1918, 262 Pa. 150, 105 A. 73). It was so held by the Supreme Court of Pennsylvania in Sefton v. Valley Dairy Co., 1942, 345 Pa. 324 at page 326, 28 A.2d 313, at page 314. Said the court: "It is well settled * * * that the presence of a defendant's name on a commercial vehicle raises a rebuttable presumption that the vehicle is owned by defendant and that the driver of the vehicle is a servant of defendant acting within the scope of his employment. * * * This presumption is sufficient to take the case to the jury even though a defendant produces uncontradicted evidence that the driver was not its employee * * * or produces evidence that it did not own the vehicle in question * * *."
The effect of the presumption was stated in the leading case of Gojkovic v. Wageley, 1924, 278 Pa. 488 at page 490, 123 A. 466. Said the court: "* * * whether such presumption has been overcome by oral testimony is for the jury * * * a rebuttable presumption of liability has the same probative force as if established by direct evidence, and it is for the jury to pass upon the creditability of witnesses offered to repel such presumption."
In recognition of the fact that the all-important factor in the determination of liability is the question of "control" over the driver of the tractor, the defendant vigorously contends that Gramlich was not its driver nor was the ...