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May 2, 1958


Appeals, Nos. 223, 224, 225, March T., 1957, from judgments of Court of Common Pleas of Washington County, August T., 1955, No. 243, in case of Clarence C. Waters, Jr., administrator of estate of Earl Reddish Yowell, deceased, et al. v. New Amsterdam Casualty Company. Judgments reversed; reargument refused July 31, 1958.


Stephen D. Marriner, for appellant.

Francis H. Patrono, with him Paul P. Posa and McCloskey, Patrono and McCloskey, for appellees.

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

Author: Cohen

[ 393 Pa. Page 249]


In 1951 a collision between two automobiles resulted in the death of E. R. Yowell and the injury of his wife, Viola, who were in one of the vehicles. Ronald Koch was driving the other automobile which was owned by Edward Dreistadt. Mrs. Yowell and Clarence Waters, the administrator of the estate of her husband, brought actions for personal injuries and wrongful death against Koch, the driver, and Dreistadt, the owner. Dreistadt filed an answer denying that Koch had permission to drive his automobile and was discontinued as a party defendant. The actions resulted in verdicts for the plaintiffs against Koch alone on which judgments were entered. In order to satisfy the judgments plaintiffs brought this present suit against the New Amsterdam Casualty Company on its policy of

[ 393 Pa. Page 250]

    insurance issued to Dreistadt insuring "the named insured and also ... any person while using the automobile ... provided the actual use of the automobile is by the named insured or with his permission." (Emphasis supplied).

At the trial in the court below the plaintiffs introduced evidence to show that Dreistadt was the owner of the automobile, Koch the driver of the vehicle at the time of the accident, and that judgments against Koch were obtained in the earlier suit. The plaintiffs then rested. The defendant moved for a compulsory non-suit contending that the plaintiffs failed to establish that "the actual use of the automobile was by the named insured or with his permission." The motion was denied by the trial judge who determined that a presumption of permissive use of the automobile arose from proof of Dreistadt's ownership of the vehicle. The defendant then introduced testimony to prove that Koch did not have permission to drive the automobile, but that he had only temporary custody of the vehicle in order to wax and polish it. At the close of the evidence the trial judge refused defendant's request for binding instructions and charged the jury that the plaintiffs were entitled to a presumption that Koch was operating the automobile at the time of the accident with the permission of the owner until and unless the defendant overcame this presumption by a preponderance of the evidence. The issue of whether defendant's evidence was sufficient to rebut this presumption was left with the jury. The jury returned verdicts in favor of the plaintiffs and, after defendant's motions for judgment n.o.v. and a new trial were refused by the court en banc, these appeals were taken.

A presumption is a judicial declaration that the establishment of one fact (The Basic Fact) requires the assumption of the existence of a second fact (The

[ 393 Pa. Page 251]

Presumed Fact). One of the principal reasons for the creation of presumptions has been stated by Morgan and Maguire as follows: "... [Some] presumptions owe their original and persistence to the judicial conviction that the party who has peculiar means of access to the evidence, or peculiar knowledge as to the existence or non-existence of the presumed fact should bear at least the burden of producing relevant evidence thereof sufficient to justify a finding in his favor. ..."*fn1

For this reason we early established in Pennsylvania the rule that proof of the ownership of a business vehicle involved in an accident, even though the owner's name does not appear thereon, raises a presumption that the operation of the automobile was for the owner's business purposes.*fn2 Whether at time and place of an accident a commercial vehicle was actually being used for the owner's purposes or not, is usually peculiarly within the owner's knowledge, and consequently the burden of producing credible evidence upon the issue is properly put upon him. Sieber v. Russ Bros. Ice Cream Co., 276 Pa. 340, 344, 120 Atl. 272 (1923); Lanteigne v. Smith, 365 Pa. 132, 139, 74 A.2d 116 (1950) (dissenting opinion). Since the presumption

[ 393 Pa. Page 252]

    is no more than a procedural technique designed for trial convenience to facilitate the production of proof by requiring the party with easier means of access thereto to come forward with evidence, its consequence may be stated as follows: If the defendant fails to introduce credible evidence negating agency, then the issue is decided in favor of the plaintiff as a matter of legal ruling. If the defendant does offer credible evidence to the contrary the presumption disappears as a rule of law and has no further effect upon the outcome of the case. See Watkins v. Prudential Insurance Co., 315 Pa. 497, 507-508, 512, 173 Atl. 644 (1934); MacDonald v. Pennsylvania R.R. Co., 348 Pa. 558, 566-567, 36 A.2d 492 (1944); Commonwealth v. Wucherer, 351 Pa. 305, 311, 41 A.2d 574 (1945); Hense v. McGovern, 317 Pa. 302, 310-311, 176 Atl. 503 (1935): Geho's Estate, 340 Pa. 412, 415-416, 17 A.2d 342 (1941); District of Columbia's Appeal, 343 Pa. 65, 75-76, 21 A.2d 883 (1941); 9 Wigmore, Evidence § 2487, § 2491 at 289 (3rd ed. 1940); 20 Am. Jur., Evidence § 166 (1939) (cases collected).

In the present case, for the same reasons which justified the creation of the "commercial ownership-agency" presumption, the lower court was correct in holding that ownership of a non-commercial automobile raised a presumption that the use of the vehicle was with the permission of the owner.*fn3 The effect of this

[ 393 Pa. Page 253]

    noncommercial ownership-consent" presumption is the same as that of the "commercial ownership-agency" presumption - to require the defendant to come forward with credible evidence.

The burden of persuasion on the issue of the permission of the driver of the automobile remains with the plaintiff. Cf. Walters v. Western & Southern Life Ins. Co., 318 Pa. 382, 388-390, 178 Atl. 499 (1935); Waldron v. Metropolitan Life Ins. Co., 347 Pa. 257, 259-60, 31 A.2d 902 (1943). Therefore, when the defendant assumes his burden of going forward with the evidence on the issue of permission and presents evidence clearly indicating that no permission was granted so that a jury could not reasonably find otherwise, then if the plaintiff fails to produce evidence that permission had been granted, the court should direct a verdict for the defendant.*fn4

In the trial of the case defendant attempted to meet his obligation by adducing testimony that Koch did not have permission to use the Drestadt automobile. Plaintiffs on the other hand, sought to shake the credibility of the defendant's witnesses through cross-examination and to elicit testimony from them that Koch did have permission. The court then properly permitted the case to go to the jury.*fn5 However, the evidence

[ 393 Pa. Page 254]

    was submitted to the jury under erroneous and prejudicial instructions, and therefore the verdicts returned in favor of the plaintiffs cannot be permitted to stand.

The trial judge charged the jury that the so-called presumption that one acts rightfully rather than wrongfully*fn6 shifted the burden of persuasion and required the defendant to prove Koch's lack of permission by the preponderance of the evidence. The "presumption" that one acts rightfully, like the "presumption" of innocence in criminal cases, is actually a judicial determination that the litigant who alleges the illegality, wrongfulness or impropriety of the acts of another party has the burden of producing evidence and persuading the fact-finder on the issue.*fn7 This, a defendant asserting the illegality of the operations of a plaintiff in order to defend against liability must prove his contention by a preponderance of the evidence, Horan v. Weiler & Ellis, 41 Pa. 470 (1862), the same as a plaintiff must do when he seeks to recover for injury caused by the alleged wrongdoing of a defendant. Cincinnati, N.O. & T.P. Ry. v. Rankin, 241 U.S. 319 (1916). But this ...

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