Appeal, No. 164, Jan. T., 1951, from judgment of Court of Common Pleas of McKean County, Feb. T., 1950, No. 20, in case of George W. Bells et ux., v. Thomas D. Mallory, Lewis E. Mallory, III, and Marjorie Mallory Habgood, co-partners trading as L. E. Mallory & Son, and Cain. Judgment affirmed.
W. D. Gallup, with him E. G. Potter, and Gallup, Potter & Gallup, for appellants.
R. T. Mutzabaugh, with him Nash & Mutzabaugh, for appellees.
Before Drew, C.j., Stern, Stearne, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. CHIEF JUSTICE DREW
Belle Belles was injured when the car in which she was riding was struck by a car owned and operated by Ray Cain. She and her husband brought suit against L. E. Mallory & Son, Cain's employer, and Cain, to recover for the injuries to wife-plaintiff and the damage to their automobile. A verdict was rendered in favor of plaintiffs and motions for judgment n.o.v. and new trial filed by Mallory were refused. From the judgment entered on the verdict, Mallory has appealed, raising only the question of the denial of judgment n.o.v.
Cain had been employed by Mallory for eight years as a pumper on its properties and, at the time of the accident, was admittedly engaged in the duties of his employment. The only question now before us is whether Mallory is, as a consequence, liable for the injuries plaintiff suffered as a result of Cain's negligence. This in turn depends on whether Cain has implied authority to use his car for this work.
On the morning of the accident Cain had driven his automobile near a well he was to service and pump. Discovering the well line needed repairing, he used his car to go to a tool house some 1200 to 1500 feet away in order to pick up some parts and tools weighing approximately 25 pounds. The accident occurred as he turned his car out into plaintiff's traffic lane.
At the trial it was undisputed that Cain was the owner of the car he was operating; that he drove his
car daily from his home to the oil lease; that he drove it once a week to some wells on the leased properties which were five or seven miles apart; that he drove it from time to time, as on the morning of the accident, for comparatively short distances on the lease; that he occasionally drove it to Bradford at the direction of his employer; that his foreman had knowledge of his using his car in driving back and forth between the wells; that none of the driving, with the exception of trips to Bradford, was at the express direction of the employer; that the employer paid for the gas used on some of these trips to Bradford but not at other times. It is also admitted that Cain was furthering the business of his employer when he started for the tool house but Mallory denies that the use of the automobile for this purpose was so necessary to the carrying on of its business as to warrant a jury finding that it, as employer, was liable for Cain's negligence.
In Gozdonovic v. Pleasant Hills Realty Co., 357 Pa. 23, 53 A.2d 73, this Court held that, in order to hold the employer legally responsible, it was necessary to prove that: "... the use of the instrumentality at the time and place of the act complained of must be of such vital importance in furthering the business of the master that the latter's actual or potential control of it at that time and place may reasonably be inferred." Mr. Justice STERN speaking for the Court, added (at p. 27) that: "... the test of 'vital importance' or 'reasonable necessity' -- is that, if an employe uses his automobile in furtherance of his employer's business but primarily for his own convenience, such use being therefore a matter of indifference to the employer, the latter is not legally responsible for the operation of the ...