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JOHN H. SHUMAN ESTATE v. GARY WEBER (03/28/80)

filed: March 28, 1980.

JOHN H. SHUMAN ESTATE, APPELLANT,
v.
GARY WEBER, THOMAS MERTZ, T/A MERTZ AUTO SALES AND JIM M. SHAFFER, T/A JIM SHAFFER BODY SHOP



No. 2490 October Term, 1978 Appeal from the Judgment entered in the Court of Common Pleas of Columbia County, Civil Action--Trespass, No. 1415 of 1977.

COUNSEL

Elwood R. Harding, Jr., Bloomsburg, for appellant.

Robert E. Bull, Berwick, for appellees.

Price, Wieand and Van der Voort, JJ.

Author: Price

[ 276 Pa. Super. Page 212]

This is an appeal from an order of the court of common pleas granting appellee Thomas Mertz' motion for judgment non obstante veredicto and directing judgment in his favor against appellant, the plaintiff below. Appellant contends that the evidence adduced at trial was sufficient to support the jury's verdict and that the court, by its order, substituted its judgment for that of the jury. We disagree and affirm the order.

[ 276 Pa. Super. Page 213]

It is hornbook law that in deciding a motion for judgment n. o. v., the court must consider the evidence, including all reasonable inferences deducible therefrom, in the light most favorable to the verdict winner, the appellant in this case and must resolve all conflicts and doubts in his favor. Broxie v. Household Finance Co., 472 Pa. 373, 372 A.2d 741 (1977); Flaherty v. Pennsylvania Railroad Co., 426 Pa. 83, 231 A.2d 179 (1967). Viewed in this manner, the facts of this case may be succinctly stated as follows. On April 8, 1977, Thomas Mertz brought an automobile from his used car business to the Shaffer Body Shop, located approximately four miles away, to have minor repair work undertaken. The usual policy of Shaffer's Body Shop is that the customer is responsible for the delivery and retrieval of his vehicle, but Mertz made an arrangement with Gary Weber, an employee at Shaffer's, whereby Weber was to return the car to Mertz' business premises following work that day. This arrangement was a convenience for both parties as it saved Mertz a trip to Shaffer's and provided Weber with transportation to his home, which is located several hundred yards from Mertz' car lot. Weber received no monetary compensation for his service of delivering the car.

Although the evidence is conflicting as to whether Weber actually attempted to return the car to Mertz' premises following the completion of the repairs, he did use the car after work that evening, without Mertz' permission, to visit his mother and children and to meet some friends at a nearby tavern. At 4:00 a. m., while driving from the tavern to Mertz' car lot, he fell asleep at the wheel and lost control of the car, causing it to collide with appellant's apartment building, located approximately three miles from Mertz' premises.

Appellant brought an action in trespass against Weber, Mertz and Shaffer, and trial commenced on April 25, 1978. Following presentation of plaintiff's case, counsel for Mertz and Shaffer both moved for a compulsory non-suit. The trial court granted the motion on behalf if Shaffer but denied the motion on behalf of Mertz and the testimony was completed.

[ 276 Pa. Super. Page 214]

Counsel for Mertz timely filed a request for binding instructions, which was denied. The jury returned a verdict against both Weber and Mertz, causing counsel for Mertz to file a motion for judgment n. o. v. The court of common pleas granted this motion and appellant filed the instant appeal.

The test for judging the appropriateness of awarding judgment n. o. v. was elucidated in Eldridge v. Melcher, 226 Pa. Super. 381, 313 ...


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