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filed: March 10, 1986.


Appeal from Judgment of the Court of Common Pleas, Civil Division, of Westmoreland County, No. 588 of 1980.


Nancy Winschel, Pittsburgh, for appellant.

Bernard S. Shire, Monessen, for Lynn, appellees.

Louis C. Long, Pittsburgh, for Cepurneek, appellees.

Wieand, Del Sole and Hester, JJ.

Author: Wieand

[ 352 Pa. Super. Page 382]

In this appeal we are asked to review the trial court's jury instructions as they pertain to the possible existence of a master and servant relationship between a candy manufacturer and the driver of a truck provided by a third party, pursuant to contract, to haul the manufacturer's products.

On August 15, 1979, a truck owned by Philip A. Packard, Inc.,*fn1 loaded with candy containers, and operated by John Cepurneek, left the travelled portion of Interstate Route 70 in Westmoreland County and collided with a pickup truck parked along the berm. As a result of the ensuing, forced

[ 352 Pa. Super. Page 383]

    movement of the pickup truck, Harold Lynn was pinned and injured. The jury found that Cepurneek had been guilty of negligence and returned a verdict against Cepurneek, Packard and the candy manufacturer, F.B. Washburn Candy Corporation (Washburn).

A principal issue at the time of trial was whether a master and servant relationship existed between Washburn and Cepurneek, the driver. Packard, the owner of the truck, contended that Cepurneek, whom Packard had supplied to drive the truck, was employed by Washburn and subject to Washburn's right of control. Cepurneek testified that on the trip in question he was hauling candy containers which he had picked up in Piqua, Ohio and which he was to deliver to Washburn at its plant in Brockton, Massachusetts. His instructions regarding the source of the cargo and his destination, he said, had been received from Washburn's personnel. Washburn's evidence, on the other hand, was that it had had no right to control the operation of the tractor-trailer unit and had merely paid an agreed sum to Packard to have the candy containers delivered.

The evidence revealed also that the driver of the truck, Cepurneek, had been selected and paid by Packard; that orders for the return trip had been relayed to Cepurneek by Packard; that Packard had obtained insurance for the trip; that the truck had been kept at Packard's place of business between shipments of Washburn's merchandise; and that after the collision which spawned this lawsuit, it had been Packard who delivered Washburn's containers by renting another truck and hiring a new driver. In addition, it was shown that Washburn had not been authorized to fire Cepurneek, had no input regarding the fuel Cepurneek used in the truck or the route that he was to take, and had not discussed with Packard how Cepurneek was to be reimbursed for his expenses.

At the time of the accident, cardboard signs were taped to the sides of the tractor stating: "Leased to F.B. Washburn Candy Company." These signs had been handprinted by Packard's daughter and had been taped to the sides of the

[ 352 Pa. Super. Page 384]

    tractor by Packard. Washburn contended that this had been done without its knowledge or consent. There was also evidence, which was not disputed, that neither Packard nor Cepurneek had been licensed to operate in interstate commerce. However, the testimony of Washburn's vice-president, Robert Gilson, was that he had been told by Packard before agreeing to have Packard haul the containers, that he, Packard, had an Interstate Commerce Commission license to carry cargo interstate.

The jury instructions challenged by Washburn on appeal include (1) an instruction that the presence of Washburn's name on the doors of the tractor shifted to Washburn the burden of proving that a master and servant relationship did not exist between Washburn and the driver of Packard's truck; and (2) an instruction that the jury was required to find a relationship between Washburn and the driver which was consistent with regulations of the Interstate Commerce Commission. We conclude that the trial court's jury instructions contained error.

"Where the evidence produced by plaintiff, if believed, is sufficient to prove that he was injured by the negligence of one in charge of a business automobile, bearing the trade[]name of defendant, displayed thereon in such a manner as trade or business names are usually placed on vehicles used for trade or business purposes, these facts are sufficient (1) to raise the presumption that the car in question was owned by defendant and was being used by the person in charge thereof for defendant's business purposes; and (2) when such presumptions so arise, they entitle plaintiff to have his case submitted to the jury." Capozi v. Hearst Publishing Co., 371 Pa. 503, 511, 92 A.2d 177, 181 (1952), quoting Hartig v. American Ice Co., 290 Pa. 21, 30-31, 137 A. 867, 870 (1927). See also: Sefton v. Valley Dairy Co., 345 Pa. 324, 326, 28 A.2d 313, 314 (1942). This presumption serves at least two purposes: (1) it corrects an imbalance resulting from one party's access to the proof; and (2) proof that defendant's name appears on a commercial vehicle renders it probable that the driver is a

[ 352 Pa. Super. Page 385]

    servant of the defendant-owner or lessee; and, therefore, it is both sensible and time saving to assume this fact. See: McCormick on Evidence § 343 (3d ed. 1984).

Where the defendant offers evidence which, if believed, tends to rebut the presumed fact, how should the trial court instruct the jury regarding the effect of the presumption? "The problem of the effect of a presumption when met by proof rebutting the presumed fact has literally plagued the courts and legal scholars." McCormick on Evidence § 344 (3d ed. 1984).

The most widely followed theory of presumptions in American law has been that they are "like bats of the law flitting in the twilight, but disappearing in the sunshine of actual facts." Put less poetically, under what has become known as the Thayer or "bursting bubble" theory, the only effect of a presumption is to shift the burden of producing evidence with regard to the presumed fact. If that evidence is produced by the adversary, the presumption is spent and disappears. In practical terms, the theory means that, although a presumption is available to permit the party relying upon it to survive a motion for directed verdict at the close of his own case, it has no other value in the trial. The view is derived from Thayer,*fn2 sanctioned by Wigmore,*fn3 adopted in the Model Code of Evidence,*fn4 and seemingly been made a part of the Federal Rules of Evidence.*fn5 It has been adopted, at least verbally, in countless modern decisions.

The theory is simple to state, and if religiously followed, not at all difficult to apply. The trial judge need only determine that the evidence introduced in rebuttal is sufficient to support a finding contrary to the presumed fact. If that determination is made, certainly there is no need to instruct the ...

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