to help, the fact that plaintiff was in the milk truck while it was being loaded in defendant's terminal, and that one of the proprietors was present that evening in the terminal. The court as a matter of law determined that there was not sufficient evidence upon which to support a finding of knowledge or acquiescence. The court found that plaintiff had not carried the burden of proof as to the first element necessary for recovery as no proof was introduced to show that one in a position of authority had actually been aware of Reis' presence.
In the present case plaintiff's only evidence on the issue of defendant's notice or acquiescence was the testimony of Charles Warren that he had been introduced to a dispatcher at defendant's terminal in Rochester and had been seen by him there on several other occasions. Neither party produced the dispatcher for his testimony. Defendant's failure to produce this witness or explain his absence raises a permissible inference of notice and acquiescence on the trips to Rochester.
We believe that the evidence produced by plaintiff was sufficient to show defendant's knowledge or acquiescence of plaintiff's presence on trips to Rochester, New York, but question whether it is sufficient to support a finding that Midwest Emery impliedly consented to Charles presence on trips elsewhere, including a trip to Rochelle, Illinois. The Rochelle trip was the first trip plaintiff had made to this terminal and plaintiff's presence was for his own benefit. Even if we assume that this evidence is sufficient to show notice or acquiesence, the second element in plaintiff's cause of action is missing.
We also instructed the jury that if there had been sufficient notice and there had been no objection thereto that it was incumbent on the plaintiff to show that the invitation or its consequences were in furtherance of the business of Midwest Emery so that the invitation might be said to be impliedly within Ralph Warren's authority. We believe this to be the law as set forth in Borzik v. Miller, 399 Pa. 293, 159 A.2d 741 ; Noel v. Puckett, 427 Pa. 328, 235 A.2d 380 , and Reis v. Mosebach, supra. In Borzik v. Miller the plaintiff was a passenger in a car operated by her boyfriend but owned by the employer and provided for the driver's use and convenience in making sales calls. The plaintiff testified that at times she assisted Borzik in delivering cars by driving his demonstrator to the point of delivery in order to furnish him transportation for his return trip, and that the defendant, the employer of Borzik, knew that the plaintiff had ridden with Borzik in the past when he went to see prospective customers, and did not object. The critical factor upon which plaintiff was denied recovery was the fact that even though the defendant employer knew of plaintiff's presence on prior trips, and would impliedly have consented to the trip in which plaintiff sustained her injuries, she was not along in furtherance of the employer's business, because she was along for her own enjoyment and was not providing Borzik a means of returning home. The court on defendant's Motion for Nonsuit gave plaintiff the benefit of all of the evidence in her favor and of all reasonable inferences therefrom and concluded that on the trip in question she was along for her personal pleasure and therefore granted defendant's motion.
The Court in Muroski v. Hnath, 392 Pa. 233, 139 A.2d 902  ruled that fatigue of the employee driver did not create an emergency which would justify the employment of another person to drive and would take an unwarranted distortion of the implied authority of driver to employ another because of an emergency "reasonably necessary for the performance of the work of [the employer]." "It would permit an employee to take a girl friend or to pick up a stranger for a ride and under any of half a dozen pretexts, permit her or him to drive the employer's car and thereby make the employer liable for the acts of a total stranger. This is not only contrary to established law, but would open wide the door to fraud." (pp. 903, 904).
We believe the "work or benefit" provided by the plaintiff in the present case falls within the half dozen pretexts mentioned by the Muroski case for which an employer should not be held responsible for their employee's negligence toward third-party passengers.
We have carefully considered plaintiff's evidence as to this matter and find that plaintiff has not prima facie shown that Charles' presence on the truck during the trip to Rochelle, Illinois was intended and was never more than incidentally beneficial for defendant's business. Charles testified that he had asked his father to go on this trip because he had never been to Rochelle. (Tr. 8). He went along because he liked to be around tractors, machinery and engines. (Tr. 33, 34). The only work or services he performed was holding a flashlight and passing tools to his father to repair the refrigerator unit. This took approximately 15 minutes. Charles also recalls testing the tires to see that they were properly inflated. Other than these trivial matters Charles did nothing to further Midwest Emery's business. We believe these insignificant occurrences should not be considered as being a business benefit to defendant. Charles was travelling with his father over the Christmas vacation purely for his own benefit and enjoyment with no intent or thought of furthering the business of Midwest.
Defendant having moved for a directed verdict at the end of plaintiff's evidence and having renewed that motion at the end of the case, Defendant's Motion for Judgment N.O.V. is GRANTED, and judgment is ORDERED entered for Defendant.
Plaintiff's Motion for New Trial solely on the issue of damages is DENIED.
It is so ORDERED this 22nd day of August, 1969.
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