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KELLER v. PORTA (01/20/53)

January 20, 1953

KELLER
v.
PORTA



COUNSEL

Richard S. Oyler and Samuel H. Jubelirer, Altoona, for appellant.

Robert C. Haberstroh, Amos Davis and A. A. Notopoulos, Altoona, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.

Author: Gunther

[ 172 Pa. Super. Page 652]

GUNTHER, Judge.

This is an action on a book account by Samuel W. Keller, trading as Keller Motor Sales, for labor and materials furnished to John M. Porta, appellant, in the amount of $917.23. A jury rendered a verdict for plaintiff in the full amount of his claim. Defendant filed a motion for a new trial alleging trial errors in (1) the admission of evidence, and (2) certain instructions by the trial judge in his charge. Defendant now appeals from the dismissal of his motion for a new trial.

Plaintiff conducts an automobile and truck repair business in the City of Altoona as a Mack truck agency. Plaintiff's claim may be grouped into two categories:

[ 172 Pa. Super. Page 653]

(1) reimbursement for monies paid by plaintiff on behalf of defendant to Mack agencies at Pittsburgh, Pennsylvania, Allentown, Pennsylvania, and Chicago, Illinois; and (2) for truck parts and labor furnished by plaintiff to defendant over a period of approximately four years.

The evidence establishes that the claim for reimbursement arose out of an arrangement which existed between the parties whereby plaintiff would guarantee payment of accounts for services performed on defendant's truck which had broken down while away from home to enable defendant's truck to be released immediately. For example, if defendant's truck would break down in Pittsburgh (as was the situation), defendant's driver would take the truck to the local Mack agency in the area, the necessary parts and labor would be performed on the truck and the truck released after the Pittsburgh Mack agency would contact plaintiff and plaintiff guarantee Pittsburgh agency's charges. The usual and accepted procedure was for the out-of-town agency to bill the plaintiff, the plaintiff pay the out-of-town agency and then bill the defendant. Plaintiff, on three occasions pertinent here, was called upon and did pay the bills incurred by defendant at the three mentioned cities.

Defendant does not deny that the labor and materials were advanced by Mack agencies in other cities nor that plaintiff may have paid said bills. His complaint is that in one or two instances the charges made by the out-of-town Mack agencies were too high. For example, one of such charges was a bill from a Chicago Mack agency of $28.65 to install an exchange fuel pump. Defendant contends that the labor charges made were unreasonable in light of the amount of work normally required to make such repairs. Plaintiff, on cross examination, stated that perhaps the amount of

[ 172 Pa. Super. Page 654]

    the charge may have been a little high compared to the Altoona labor market, but added that the nature of the job might have required a repairman going several miles to replace this pump, necessitating the higher labor charge. On this phase of the case, it was clearly defendant's burden to show that the charges were unreasonable, plaintiff having previously shown that he had paid the bills on behalf of defendant. 'If the charges were not reasonable, it was a matter of defense': Clifford v. Hicks, 95 Pa. Super. 182, 183; Cf. Grogan v. Michael, 349 Pa. 369, 37 A.2d 715. As we have said previously, plaintiff in this portion of his claim is seeking reimbursement for funds actually paid by him in emergency situations for defendant, for defendant's sole accommodation and to preserve in many instances perishable goods loaded in defendant's trucks at the time when they had broken down in Pittsburgh, ...


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