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WINWARD ET AL. v. RHODEWALT. (03/19/64)

March 19, 1964

WINWARD ET AL., APPELLANTS,
v.
RHODEWALT.



Appeal, No. 280, Oct. T., 1963, from judgment of Court of Common Pleas of Chester County, Dec. T., 1958, No. 59, case of Edith Winward et al. v. Walter Rhodewalt, individually and trading as Barney's Garage. Judgment reversed.

COUNSEL

G. Clinton Fogwell, Jr., with him Melva L. Mueller, and Reilly and Fogwell, for appellants.

Robert S. Gawthrop, Jr., with him Gawthrop & Greenwood, for appellee.

Before Rhodes, P.j., Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (ervin, J., absent).

Author: Flood

[ 203 Pa. Super. Page 370]

OPINION BY FLOOD, J.

The plaintiffs obtained a verdict against the defendant for damages to their car resulting from the negligence of the defendant's employe, Francis Dildine. The court below entered judgment n.o.v. for the defendant on the ground that there was not sufficient evidence that Dildine was acting within the scope of his authority as the defendant's agent at the time of the accident. The sole question before us is the correctness of that holding.

During his lunch period on the day of the accident Dildine spoke with his friend Thompson, one of the plaintiffs, over the telephone and was asked to take the latter's car to the defendant's garage for the semiannual State inspection. About fifteen minutes later Dildine went to Thompson's home and got the car. The accident occurred while he was driving to the garage. No question is raised as to Dildine's negligence. See Winward v. Rhodewalt, 198 Pa. Superior Ct. 591, 182 A.2d 111 (1962).

The car had been serviced in the defendant's garage at least twice before. Asked about this, Dildine answered: "Yes. I think I had it there on two occasions." He said he had driven other cars there but was "not positive" whether he had done so before or only after the date of the accident, although the defendant made no objection on one of the prior occasions when he took the Thompson car to the garage

[ 203 Pa. Super. Page 371]

    for lubrication. Dildine further testified that while he was on his lunch period he could go where he wanted to go and do what he wanted to do.

The court below concluded that it did not appear from the evidence that at the particular time and place of the accident Dildine was acting within the scope, or for the purposes, of his employment or that he was then under the defendant's control or subject to his right of control. It based this conclusion upon the testimony that during his lunch hour Dildine had the right to do what he pleased and was not subject to the defendant's orders, the fact that the defendant had not instructed him to bring the plaintiff's car to the garage and the lack of evidence that he had been previously instructed, or had any implied or apparent authority, to do so.

The evidence must be taken most favorably to the plaintiffs who won the verdict and they are entitled to the benefit of all reasonable inferences which may be drawn from that testimony. ...


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