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BORZIK v. MILLER. (04/18/60)

April 18, 1960

BORZIK, APPELLANT,
v.
MILLER.



Appeal, No. 97, March T., 1959, from judgment of Court of Common Pleas of Fayette County, June T., 1957, No. 202, in case of Wanda June Borzik, individually, et al. v. John Patton Miller et al. Judgment affirmed.

COUNSEL

Anthony Cavalcante, for appellant.

William B. Parshall, with him Parshall & Crow, for appellees.

Before Jones, C.j., Bell, Jones, Cohen, Bok and McBRIDE, JJ.

Author: Bell

[ 399 Pa. Page 294]

OPINION BY MR. JUSTICE BELL.

Plaintiff, Wanda June Borzik, appealed from a judgment of (compulsory) non-suit which was entered in her action of trespass against the original defendants for personal injuries sustained by her while riding in their automobile, which was operated by their employee, the additional defendant, Joseph B. Borzik. While there were other actions and other claims, the only question on this appeal is the liability of the original defendants to this plaintiff.

Borzik was hired by defendants as a salesman and his territory covered numerous states. Defendants gave

[ 399 Pa. Page 295]

    him one of their automobiles to drive in furtherance of their business, and he also testified that he was allowed to drive it for his personal pleasure. On the evening of January 21, 1957, Borzik, at his invitation, picked up Miss McWilliams (whom he subsequently married) after work at the hospital in Waynesburg, where she was employed as a telephone operator. Borzik then stopped at her residence in Carmichaels and, at her request, took with them their infant son and proceeded through Masontown towards Uniontown on Route 21. Their destination was Macar's Wishing Well, a night club located on that highway. Plaintiff testified that he hoped to sell a car to the owner of the night club. Before arrival at the night club Borzik, in order to avoid a collision suddenly applied his brakes while traveling on a slushy highway causing the car to strike the bank on his right and then go over to the left lane and collide with a car traveling in the opposite direction. There is no evidence or any contention that Borzik was guilty of willful or wanton negligence. However, the evidence is sufficient for the jury to find that Borzik was on his master's business and was negligent at the time the collision occurred.

It is, of course, Hornbook Law that a non-suit can be entered only in a clear case, and the plaintiff must be given the benefit of all the evidence in his favor and all reasonable inferences therefrom. Finnin v. Neubert, 378 Pa. 40, 105 A.2d 77; Schofield v. King, 388 Pa. 132, 130 A.2d 93; Gift v. Palmer, 392 Pa. 628, 141 A.2d 408.

In Reis v. Mosebach, 337 Pa. 412, 12 A.2d 37, the employer had given tacit consent or acquiescence to their employee's custom of taking a rider along with him. In denying liability upon the employer the Court aptly said (page 414): "... To sustain a recovery, under these circumstances, it ...


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