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GUIDA v. GILLER (01/02/62)

January 2, 1962

GUIDA, APPELLANT,
v.
GILLER, APPELLANT.



Appeals, Nos. 380, 381, 432, 433, 434 and 435, Jan. T., 1961, from judgment and order of Court of Common Pleas No. 1 of Philadelphia County, Dec. T., 1957, No. 696, in case of Anna S. Guida et al. v. Sidney Giller et al. Judgment and orders affirmed.

COUNSEL

Howard R. Detweiler, for defendants.

Peter P. Zion, with him Lynwood F. Blount, for plaintiffs.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and Alpern, JJ.

Author: Eagen

[ 406 Pa. Page 112]

OPINION BY MR. JUSTICE EAGEN

The wife plaintiff, Anna S. Guida, a pedestrian, was struck by an automobile at the intersection of 61st Street and Buist Avenue in the city of Philadelphia. Claiming that the injuries she suffered in the accident were caused by the careless operation of the automobile, she and her husband, Ralph Guida, instituted an action for the recovery of damages. Named as defendants were: (1) the operator of the automobile, Sidney Giller; (2) Morgan's Home Equipment Corporation; and (3) Modern Auto Leasing Corporation.*fn1 It was alleged in the complaint that Giller was an employee of both corporate defendants and that at the time of the accident he was acting within the scope of that employment. At trial, the court entered a compulsory non-suit as to the defendant, Modern. The issue of the liability of the other two defendants, Giller and Morgan's Home,

[ 406 Pa. Page 113]

    was submitted to the jury. A verdict in favor of both plaintiffs, and against both defendants, was returned by the jury. The plaintiffs moved the court to remove the non-suit as to the defendant, Modern, and to grant a new trial as to the other defendants. After argument, the court en banc refused to remove the non-suit, but did order a new trial as to the other defendants. Giller and Morgan's Home appealed (Nos. 432, 433, 434 and 435) from the order directing a new trial. The plaintiffs appealed (Nos. 380 and 381) from the judgment entered following the refusal of the court to remove the non-suit as to the defendant, Modern.

Appeals No. 380 and No. 381

The defendant, Modern, filed a timely and responsive answer to the plaintiffs' complaint, specifically, denying that the operator of the automobile involved was its employee or engaged in the performance of its business, and stating that, at the time involved, the automobile was under lease to the defendant, Morgan's Home. The other two defendants filed no answer to the complaint.

At trial, the plaintiffs introduced into the record, without objection, the pleadings for the purpose of admitting ownership of the automobile by Modern. The plaintiffs then called as for cross-examination, the defendant-operator, Giller. In response to plaintiffs' counsel's questions, he testified that the automobile, a pleasure car, with pleasure car license plates, was registered in the name of Modern and, at the time involved, it was being used for a business purpose. Then in answer to defendants' counsel's questions in the form of "Redirect Examination," he testified that, at the pertinent time, he was an employee of the defendant, ...


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