Appeal, No. 351, Oct. T., 1961, from judgment of Court of Common Pleas of Franklin County, Feb. T., 1959, No. 56, in case of The Hertz Corporation v. James Hardy et al. Judgment reversed.
LeRoy S. Maxwell, for appellant.
Thomas J. MacBride, for appellees.
Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).
[ 197 Pa. Super. Page 469]
OPINION BY MONTGOMERY, J.
In this action of replevin, in which bond and counter-bond were given, plaintiff-appellant, The Hertz Corporation, sought to recover a 1957 Oldsmobile automobile it had delivered to James Jardy, one of the defendants, under a rental agreement executed in Cleveland, Ohio. Sara Thompson and I. Edgar Thompson were added as additional defendants when the automobile was found in their possession in Waynesboro, Franklin County, Pennsylvania, by the sheriff of that county when executing the writ of replevin. At that time I. Edgar Thompson held a certificate of title for the car issued by the Pennsylvania Bureau of Motor Vehicles. Thompsons, claiming legal title to the car to be in the husband by reason of a purchase by him from David J. Hoffman, a used car dealer in Waynesboro, Pennsylvania, defended the action, and the trial by jury resulted in a verdict in defendants' (Thompsons') favor. Hardy was not served with the writ, nor did he appear. Motions for judgment n.o.v. or a new trial having been refused, judgment was entered on the verdict and this appeal followed.
Additional established facts about which there is little, if any, question are as follows:
The Hertz office at the Cleveland (Ohio) Airport, on November 24, 1957, by the customary form of written agreement, rented the vehicle involved to James Hardy for a five day rental, Hardy making a cash deposit of $100. On November 29, the same Hertz office extended the rental for another 30 days, although the
[ 197 Pa. Super. Page 470]
company has no record of the paper by which this was accomplished, or of the employe who did it, or of any further rental having been received. The company reported the car as stolen several days after the 30 day extension period had expired. Prior to renting the car from Hertz, on July 6, 1957, Hardy, using the address of 73 East 80th Street, New York, New York, had prepared a bill of sale for the identical automobile from a Mrs. Mary Emerson of New York, and on the same day registered this vehicle with the Bureau of Motor Vehicles of New York. On November 26, 1957, he sold the car obtained from Hertz to West Brownsville (Pa.) Iron and Metal Company, a licensed Pennsylvania motor vehicle dealer located just across the Ohio line and used the New York registration for the purpose of establishing himself as the owner and of transferring title to the vehicle. Previously, on November 25, 1957, Hardy had obtained an Ohio certificate of title for the Hertz car which he also used in selling it to the Brownsville company. There actually was a Mary Emerson, but she denied knowing Hardy or ever having owned a 1957 Oldsmobile car. How Hardy accomplished this is unexplained.
The Brownsville company resold the car on December 6, 1957, at the regular automobile auction at Manheim, Pennsylvania, to David J. Hoffman, the used car dealer from whom Thompson purchased it on January 7, 1958.
It is appellant's contention that it is entitled to judgment in its favor because a purchaser from a thief, or any subsequent purchaser, has no ownership and cannot hold the property against the true owner; and further, that it is not estopped under the facts of this case from ...