Appeal, No. 138, Jan. T., 1950, from judgment of Court of Common Pleas of Centre County, Sept. T., 1948, No. 126, in case of Muriel Mazur v. Sylvan Klewans. Judgment affirmed.
Roy Wilkinson, Jr., with him John G. Love and Love & Wilkinson, for appellant.
Samuel H. Jubelirer, with him William W. Litke and Jubelirer, Smith & Oyler, for appellee.
Before Drew, C.j., Stern, Stearne, Jones and Bell, JJ.
OPINION BY MR. JUSTICE JONES
The question raised on this appeal is as to the sufficiency of the evidence to establish agency between the owner and the driver of the automobile involved in the accident in suit. The plaintiff is the driver's wife. She recovered a verdict against the owner for damages for injuries suffered by her due to the negligence of her husband in his operation of the automobile whereof the owner was also an occupant. The defendant moved for
a new trial and for judgment n.o.v. The learned court below denied both motions; and the judgment from which the defendant appeals was entered on the verdict. The amount of the verdict is not questioned; and no trial error is assigned. The appellant urges here only its motion for judgment n.o.v. In that situation, the material facts, as well as the reasonable inferences to be drawn therefrom, are necessarily to be taken most favorably to the plaintiff.
Muriel Mazur, the plaintiff, her husband Julius and the defendant, Sylvan Klewans, were friends, all residing in Lock Haven, Pa. Julius's parents lived in Altoona. The Mazurs did not own an automobile but Klewans did. Julius and Klewans planned to go, with Mrs. Mazur, in Klewans' car to visit Julius's parents on an afternoon, intending to remain there overnight. On the day of the proposed trip, Klewans and Julius in Klewans' car and with him driving, arrived at the Mazur residence to pick up Mrs. Mazur. When she came out to the car, Klewans, who had alighted therefrom, explained that one of his eyes had been irritated by a foreign substance, which a doctor had removed, and he asked Julius if he would drive. Julius assented and took the driver's seat. Klewans asked Mrs. Mazur if she preferred to ride on the front seat with her husband. She expressed such a preference and got in there with the assistance of Klewans who also asked if she would mind if all three of them rode on the front seat. She said she did not mind, but Klewans, nevertheless, took his place on the rear seat. The three occupants retained those positions in the car throughout the trip up to the time of the accident. While on their way, there was occasional general conversation and twice Mrs. Mazur requested her husband not to drive so fast. Upon her first request, he temporarily complied by reducing the automobile's speed, but, a little later, she made her second request. This time Klewans interjected, "Mitzi, leave him alone, he is
doing all right." A few seconds later, the car skidded, "... went into a spin... out of control and... hit [a] telephone pole," inflicting the injuries for which Mrs. Mazur sued. It is uncontroverted that the driver's negligence was the cause of the injury.
The appellant contends that the evidence does not support a finding that Julius was the agent of Klewans in the operation of the automobile and that, even if it were prima facie sufficient for that purpose, the plaintiff is concluded in such regard as a matter of law by a written statement ...