Appeal, No. 134, March T., 1951, from judgment of Court of Common Pleas of Somerset County, 1950, C.D. No. 614, in case of Charles Richardson v. W. A. Patterson et ux. Judgment affirmed.
Harry Savage, with him Marvin D. Power, Clarence L. Shaver, Richter, Lord & Farage, Margiotti & Casey and Shaver & Heckman, for appellant.
Frank R. Coder, with him Frank R. Coder, Jr., for appellees.
Before Drew, C.j., Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE JONES
This is an appeal from a refusal of the court below to take off a compulsory non-suit entered at trial as to both defendants, a husband and wife. The plaintiff sued to recover damages for injury to himself and to his automobile as a result of a collision with an automobile owned by the husband-defendant but driven by the wife who was accompanied by their two minor children. The husband was not present.
The plaintiff's theory in joining the husband as a party defendant was that the wife was his agent or servant and was driving the automobile on his business at the time of the accident. The defendants, by their answer, denied the allegations of the wife's agency and the husband's control; and, the plaintiff offered no proof of either allegation. The only evidence concerning the husband was that he was the sole owner of the automobile involved in the collision with the plaintiff's
car. The non-suit as to the husband was therefore properly entered. In cases not involving business automobiles we have consistently held in a long line of decisions, as was recognized in Klein v. Klein, 311 Pa. 217, 219, 166 A. 790, that "'In an action to recover damages for injuries resulting from an automobile accident, it is necessary for plaintiff to prove not only that defendant was the owner of the car and that the driver was his servant, but that such servant was at the time engaged in the master's business.'" The Klein case pertinently added that "This rule applies with peculiar force when the parties are husband and wife."
The evidence offered by the plaintiff in an effort to hold the wife-defendant liable disclosed the following set of circumstances. About 2:45 p.m. on a day late in November, the plaintiff was driving his automobile westwardly on the Pennsylvania Turnpike in the vicinity of Somerset. As stated in the appellant's history of the case, and not contradicted, the Turnpike consists of two concrete highway lanes, one for eastbound and the other for westbound traffic, each lane being twenty-four feet wide and separated by a ten foot medial strip. The day was cold and gusty with snow flurries. There were some ice patches on the highway. The plaintiff said the visibility "appeared to be fair"; his witnesses described the weather as murky. A mile or two before reaching the Somerset interchange, the plaintiff had slowed down from his normal speed of thirty-five miles an hour because of the appearance of "patches of ice". Shortly after that, the skidding of a car up ahead of him, which had just passed him, caused the plaintiff to slow down to almost a stop about a mile west of the Somerset interchange and to pull over to the right and onto the berm with his right-hand wheels. While the plaintiff was in that position, a car driven by the defendant, Mrs. Patterson, proceeding in the opposite direction in the eastbound
lane, crossed the medial strip and crashed into the front of the plaintiff's car, causing the damages to him and his automobile for which he sued. At the place of the accident the Turnpike was level and straight for a considerable distance in both directions. In addition to proving the presence of Mrs. Patterson's car in the wrong highway lane at the point of collision, the plaintiff also proved that it was there as the result of having skidded. Two of his witnesses who had followed Mrs. Patterson's car for a distance of ten miles testified that they were driving very slowly, fifteen to twenty milles an hour. The plaintiff offered no evidence from which the jury could find that the skidding of Mrs. Patterson's car was the result of negligence on her part. In ...