Samuel M. Rosenzweig, Pittsburgh, Kooser, Courtney & Ogle, Somerset, for appellant.
Archibald M. Matthews, Somerset, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Ross, Gunther, Wright and Woodside, JJ.
[ 175 Pa. Super. Page 315]
In this replevin action, the contest is between the owner, as assignee of a bailment lease of an automobile, and a garageman who claims a lien upon it for repairs and storage.
On October 22, 1951, one White leased the automobile involved in this case from a dealer, Crawford, who on the same day assigned the lease to appellant,
[ 175 Pa. Super. Page 316]
Midland Credit Company. Under the terms of the lease, White was to make payment of the balance due on the purchase price of the car in monthly installments. In addition, the lease provided against the creation by White of any liens, encumbrances or charges on the automobile for repairs or otherwise. In February 1952 White was involved in an accident on the Pennsylvania Turnpike and the car was removed to the garage of appellee, J. E. Herring, trading as Herring Motor Company, in Somerset, for repairs. White became delinquent on his March 22, 1952 payment, and on May 10, 1952 appellant caused a writ of replevin with bond to issue against him, joining appellee as additional defendant. No counter-bond was filed and appellant obtained possession of the automobile. Appellee filed an answer. Appellant then moved for judgment on the pleadings, to which appellee filed an amended answer, and the motion was refused by the Court of Common Pleas of Somerset County on the ground that issues of fact relating to appellant's knowledge of and assent to the repairs had been raised which required determination by jury. The jury returned a verdict for Herring in the amount of $632.50, and after Midland's motions for a new trial and judgment n.o.v. were refused by the court below, this appeal was taken.
It is well settled that the appellant, as owner, is not liable to the appellee for repairs to the automobile unless authorized by it expressly or under circumstances from which its assent can be reasonably implied. Meyers v. Bratespiece, 174 Pa. 119, 34 A. 551; Bankers' Commercial Security Co. v. Brennan & Levy, 75 Pa. Super. 199.
At the trial appellee testified that the car was brought to his garage at the time of the 'first snow' of 1951; that White appeared three or four weeks later and inquired whether the insurance adjuster had been out to see it and appellee told him he had not been;
[ 175 Pa. Super. Page 317]
that about a month after the accident he gave an estimate of the cost of repairs to one Gastell, an insurance adjuster, who stated that 'he represented the Finance Company, Midland Credit Company', and directed him to proceed with the repairs; that after the work was in progress he received a telephone call from Midland Credit Company inquiring as to the status of the repairs; that he did not recognize the voice but assumed, since the caller 'knew enough of the description of the car' that he was authorized by appellant, so did not telephone back to verify it. Testimony relative to the ...