Charles H. Weidner and Stevens & Lee, Reading, for appellant.
Robert I. Cottom and Matten & Matten, Reading, for appellees.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Gunther and Wright, JJ.
[ 173 Pa. Super. Page 510]
Krick was the owner of a tractor, operated by Steffy, and trip-leased (with a trailer) to Motor Cargo, Inc. Steffy's conceded negligence caused the tractor to collide with Lindenmuth's building. A trespass action resulted in a verdict against all three defendants. Motor Cargo, Inc., has appealed from the refusal to enter judgment non obstante veredicto in its favor. We have concluded
[ 173 Pa. Super. Page 511]
that the case was properly decided by the lower court.
At the time of the collision with the building, there were cards 12 by 15 inches in size on the doors of the tractor with the name 'Motor Cargo' printed thereon. Plaintiff was therefore entitled to rely on the presumption that the tractor was being used by the driver in furtherance of appellant's business. Hartig v. American Ice Co., 290 Pa. 21, 137 A. 867; Sefton v. Valley Dairy Co., 345 Pa. 324, 28 A.2d 313; Murphy v. Wolverine Express, Inc., 155 Pa. Super. 125, 38 A.2d 511. With such a presumption, the case was for the jury unless plaintiff showed in his presentation that the vehicle was not being used in defendant's business. Hartig v. American Ice Co., supra; see Gojkovic v. Wageley, 278 Pa. 488, 123 A. 466.
Plaintiff did not rely solely on the presumption but called Steffy as on cross-examination. It is appellant's contention that Steffy's uncontradicted testimony conclusively establishes that at the time of the collision (1) Steffy was on a mission of his own; (2) Steffy had substantially deviated from his charted course either for personal reasons or for Krick's benefit; and (3) Steffy was under Krick's exclusive control and direction. It will be necessary to set forth the factual situation in some detail.
Steffy had driven the tractor-trailer to Chicago delivering a load of freight to Motor Cargo's terminal there. He arrived in Chicago on a Monday night. The following Thursday the trailer was re-loaded at Motor Cargo's terminal and Steffy started to drive away. As he was leaving the yard the fifth wheel of the tractor came loose and the trailer fell off. Mechanics at the Motor Cargo garage made temporary repairs and Steffy started East with orders from Motor Cargo's dispatcher to take the load to Allentown, Pennsylvania, for delivery by the following Tuesday. Expense money for gas
[ 173 Pa. Super. Page 512]
and oil was given him by Motor Cargo. He stopped at Akron, Ohio, at the Motor Cargo terminal and further repairs were made to the fifth wheel and to the lights. The lights did not work properly, however, and he was halted by the Ohio police and warned about them. He parked most of the night on the Pennsylvania Turnpike because of the trouble with the lights. He left the Turnpike at Carlisle, went to Harrisburg and then to Reading, arriving in that city about 4:00 p. m. He dropped the trailer at a parking lot adjacent to Cutler's service station, drove the tractor to Krick's where he talked to Mrs. Krick, then went home, ate supper and went to bed. About 8:00 p. m. after taking a bath, shaving and dressing, he went to the service station and asked Cutler to help him fix the lights. Cutler gave him the key to a garage located in another part of the city and told him to go there and fix them. It was raining at the time and Cutler was too busy to help. Steffy drove the tractor to the garage and tried to fix the lights. He was able to repair them satisfactorily, with the exception of the turn signals. He then drove to a restaurant located near the garage -- but not on the route back to the service station -- arriving about 9:00 or 9:30 p. m. ...