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MUROSKI v. HNATH. (03/24/58)

March 24, 1958

MUROSKI, APPELLANT,
v.
HNATH.



Appeals, Nos. 342, 343, 344, 345, 346, 347, Jan. T., 1957 from judgments and orders of Court of Common Pleas of Elk County, Jan. T., 1956, No. 118, in cases of William J. Muroski, Sr. et al. v. Robert Hnath et al. Judgments and orders affirmed.

COUNSEL

Lawrence M. Woods, with him B. R. Coppolo, Woods and Woods, and Driscoll, Gregory & Coppolo, for appellants.

R. T. Mutzabaugh, with him Robert Pontzer, Mutzabaugh & Healy and Pontzer & Pontzer, for appellee.

Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.

Author: Bell

[ 392 Pa. Page 235]

OPINION BY MR. JUSTICE BELL

Daniels, an employee of Pure Carbon Company, a Corporation whose principal office was at St. Marys, Pennsylvania, was instructed to deliver a package to the Bradford Airport. On October 15, 1954, he picked up, for company, a friend named Robert Hnath. He delivered the package and because of the late hour in the afternoon decided the office would be closed and he would return to his home. He used his own car and was paid wages for his time and eight cents a mile for the use of his car. While driving back he became tired and asked Hnath to drive the rest of the way. Hnath drove negligently and in a collision with Muroski's car, injured Muroski, his wife and three children, one of whom died as a result of the accident.

The jury returned a verdict in favor of all the plaintiffs against all the defendants. The trial Court entered a judgment non obstante veredicto in favor of Pure Carbon Company, and granted and refused several motions for a new trial which will be hereinafter discussed.

It is hornbook law that in considering a motion for judgment non obstante veredicto "plaintiff must be given the benefit of the evidence which is most favorable to her together with all reasonable inferences therefrom.": Bream v. Berger, 388 Pa. 433, 130 A.2d 708.

Pure Carbon Company is liable for a stranger's negligence only if its employee (Daniels) had express or implied authority to engage Hnath to drive the automobile, or if Hnath's employment, because of an emergency, was reasonably necessary for the performance of the work of Pure Carbon Company.

In Corbin v. George, 308 Pa. 201, 162 A. 459, the Court said (page 204): "The relation of master and servant cannot be imposed upon a person without his consent, express or implied. The exception to this rule

[ 392 Pa. Page 236]

    is that a servant may engage an assistant in case of an emergency, where he is unable to perform the work alone: Kirk v. Showell, Fryer & Co., Inc., 276 Pa. 587; Byrne v. Pittsburgh Brewing Co., 259 Pa. 357. The same principle is laid down in D'Allesandro v. Bentivoglia, 285 Pa. 72, ..." See to the same effect: Ginther v. Graham Transfer Company, 348 Pa. 60, 33 A.2d 923; White v. Consumers Finance Service Company, 339 Pa. 417, 15 A.2d 142.

Plaintiff's contention - assuming arguendo that Daniels on the return trip to his home was still on his employer's business, which the Company vigorously denies and contests*fn1 - that the tiredness of the driver (Daniels) created an emergency which justified the employment of Hnath, is an unwarranted distortion of the above mentioned principle and is utterly devoid of merit. It would permit an employee to take a girl friend or to pick up a stranger for a ride and under any of half a dozen pretexts, permit her or him to drive the employer's car and thereby make the employer liable for the acts of a total stranger. This is not only contrary to established law, but would open wide the door to fraud. Tusko v. Lynett, 326 Pa. 449, 192 A. 410; Reis v. Mosebach, 337 Pa. 412, 12 A.2d 37; Jacamino v. Harrison Motor Freight Company, 135 Pa. Superior Ct. 356, 364; Corbin v. George, 308 Pa., supra; Ginther v. Graham Transfer Company, 348 Pa., supra; White v. Consumers Finance Service Company, 339 Pa., supra.

It is clear that the trial Court correctly entered a judgment non obstante veredicto in favor of Pure Carbon Company.

[ 392 Pa. Page 237]

The lower Court also granted a new trial in the suit of Muroski v. Hnath & Daniels (in which Muroski, Sr. is appellant), because the verdict was so excessive as to shock its conscience; granted a new trial to Jane Muroski because of the inadequacy of the verdict; and refused motions for a new trial in the case of Muroski, Jr., a Minor; Bernice Muroski, a Minor; ...


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