Appeals, Nos. 150, 151 and 152, Jan. T., 1950, from judgments of Court of Common Pleas of Bucks County, Feb. T., 1948, No. 24, in case of Renee Lanteigne et ux. v. Earl E. Smith, trading as "Royal Sales" et al. Judgments reversed.
Peirce A. Hammond, Jr., with him Myron W. Harris, for appellant.
C. William Freed, with him C. William Freed, Jr., for appellees.
Before Drew, C.j., Stern, Stearne, Jones and Bell, JJ.
OPINION BY MR. CHIEF JUSTICE DREW
At 3 o'clock on the morning of August 7, 1947, James Duffy, defendant, negligently drove an automobile owned by Earl E. Smith, co-defendant, into the front of a restaurant owned by Renee Lanteigne and Madeline M., his wife, plaintiffs. To recover for the property damage and for personal injuries to the wife-plaintiff, this action in trespass was instituted and resulted in verdicts for
plaintiffs against both defendants. Motions for judgment n.o.v. and new trial by defendant Smith were dismissed and judgments were entered in the sum of $5,247.51 against defendants. Smith then filed this appeal, conceding Duffy's negligence, and raising as the sole question the sufficiency of the evidence to show that Duffy was his agent.
Smith owned an automobile sales agency known as "Royal Sales" in the City of Bethlehem. Duffy operated an automobile repair shop adjoining Smith's showroom and from time to time did repair work on cars owned by Smith. He also had an arrangement with Smith whereby Smith would pay him a commission on any automobiles he, Duffy, might sell. On the morning of the accident Duffy was driving an Oldsmobile owned by Smith and bearing a dealer's license plate No. A922S which had been issued to "Royal Sales". He was riding on the wrong side of State Highway Route 309, just north of the Borough of Quakertown, Bucks County, when he collided with a truck going in the opposite direction. Following the collision the car careened, out of control, into the front of plaintiffs' restaurant, known as "The Pines", causing personal injuries to the wife-plaintiff and extensive damage to the building.
Immediately following the accident Duffy told Lanteigne that he had been demonstrating the car for Smith and was returning home when the collision took place. The next day Smith visited plaintiffs and, according to their testimony, he verified Duffy's story. At the trial Smith denied making such statements and further denied that Duffy had authority to take the automobile out to demonstrate it. Duffy did not enter an appearance or testify at the trial.
The learned trial judge charged the jury that the presence of Smith's dealer's tags on the automobile raised a rebuttable presumption that Duffy was acting as Smith's ...