Appeal from judgment of Court of Common Pleas of Northampton County, Nov. T., 1963, No. 32, in case of Phyllis J. Cesare, individually and as administratrix of estate of Thomas W. Cesare, deceased, v. Howard J. Cole, Township of Bushkill of Northampton County, and George H. Potts, Jr.
Edmund P. Turtzo, for appellant.
Morris Mindlin, with him Jackson M. Sigmon, and Mindlin, Sigmon, Briody & Littner, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Musmanno dissents.
This is an appeal from the refusal to take off a compulsory non-suit entered in favor of the defendant, Township of Bushkill, at the close of plaintiff's case.
Plaintiff, individually and as administratrix of the Estate of Thomas W. Cesare, deceased, brought this action under the wrongful death and survival acts to recover damages suffered by reason of the death of said Thomas W. Cesare. Cesare suffered fatal injuries while riding as a passenger in an automobile operated by the defendant, Potts, when it collided with another automobile operated by the defendant, Cole, on Route 512 at its intersection with Township Route 634 in the Township of Bushkill.*fn1 At all relevant times, Cole was employed by the Township of Bushkill as a laborer. The sole issue involved on this appeal is whether or not the plaintiff produced enough evidence on the question of whether Cole was within the scope of his employment at the time of the accident so as to require the submission of the liability of the township to the jury. We agree with the court below that the plaintiff
has not met her burden and the motion to remove the non-suit was properly refused.
Evaluating the evidence in the light most favorable to the plaintiff, as we must in these cases, the record discloses that on the morning of July 30, 1963, Cole met his fellow employees, Peters and Muschlitz, at the township garage or equipment building at approximately 6:55 o'clock a.m.; that the working day for these men began at 7:00 o'clock a.m.; that at approximately 7:15 o'clock a.m. these three men left the township garage, Peters and Muschlitz riding in a township truck (which carried the tools to be used that day), and Cole in his own automobile, destined for work on Township Route 634; that, while sometimes riding on the township truck, Cole generally drove his own automobile from the township garage to the place where the actual labor was to be performed; that sometimes Cole carried his own tools in his automobile for use in township work; that, at the time of the accident, Cole was proceeding directly to the area previously assigned for that day's labor; and that, after the accident, Cole got into the township truck and continued therein to the area of work.
Restatement (2d), Agency, § 239 provides: "A master is not liable for injuries caused by the negligence of a servant in the use of an instrumentality which if [sic] of a substantially different kind from that authorized as a means of performing the master's service, or over the use of which it is understood that the master is to have no right of control." (Emphasis supplied.) Illustration 4 thereunder states: "The master agrees with A, his servant, to pay for A's transportation upon public vehicles such as railway trains and street cars. As an alternative, A is permitted to use his own automobile for transportation, charging to the master the regular train fare. A is paid by the week, with indefinite hours of labor. In going to a place at
which he is to perform work for the master, A drives his own car, carrying thereon necessary tools and materials belonging to the master. In the absence of evidence that A owes P any duty of obedience in the details of operating the ...