Guinney v. Hand , 153 Pa. 404 ( 1893 )

Opinion by

Mr. Chief Justice Sterrett,

It is practically conceded that the injuries suffered by plaintiff were directly caused by the reckless negligence of Thomas Carroll, who, at the time they were inflicted, was employed by the firm defendants in delivering beer, etc., to their customers. For that purpose he drove their beer wagon by which plaintiff was struck and injured. It is also conceded that if Carroll was acting within the general scope of his said employment, at the time plaintiff was injured in consequence of his negligent driving, defendants would be liable; but it is alleged that, notwithstanding he was actually driving their wagon, he was then in the temporary service of Patrick Loftus, one of their customers, to whom he had, a few minutes before, delivered a barrel of porter. Carroll testified that, on the afternoon in question, he drove out from the brewery, in company with one of the defendants, with several barrels of ale and a barrel of porter ; that, after delivering some of the ale, he went to Patrick Loftus’s place, unloaded the barrel of porter, and undertook to tap it as he was instructed to do for all his employers’ customers. In the language of the witness, Loftus “ had a wooden faucet and I busted it in tapping the porter. It was very lively porter, very wild, and it was leaking, and he asked me if I would go to Lackawanna avenue and bring him back a faucet, and he gave me a two dollar bill, and I paid $1.75 for a brass faucet. ... I drove pretty lively to Lackawanna avenue; I came down Penn avenue; . . . . and there was a couple of teams ahead of me, and I was in a hurry to get the faucet and get back and put in this other faucet, and I went to pull across, my team got a little excited, I think they did, and they went across the track, and my wagon striking Mr. Guinney that is something I never seen, and don’t believe it; I don’t see how it could.” The witness proceeded to say that after being informed of plaintiff’s injury, etc., he drove on, got the faucet, returned to Loftus’s place and tapped the barrel of porter.

This is the sort of loophole through which defendants endeavored to escape liability for the negligence of their driver.

In their second point for charge, they requested the court to say : “ If the jury believe that at the time of the accident, Carroll was not acting within the scope of his employment, but was acting for somebody else, the plaintiff is not entitled to recover.” The court t' irmed this point without any qualification.

In their fourth point, which was also affirmed, they asked the court to charge : “ That it was not in the scope of Thomas Carroll’s authority as a servant or employee of the defendants to drive the team of defendants about the streets of Scranton on errands for Patrick Loftus, and if the jury believe that, at the time of the accident, he was on such an errand, the plaintiff cannot recover in this case.”

In answer to plaintiff’s sixth point, — “ Under all the evi dence in this case it is for the jury to say whether the defend ants were guilty of negligence,” — the learned judge said: “ That is to say, whether the defendants’ driver was guilty of negligence, and whether he acted at the time within the scope of his employment.”

Again, in that part of his general charge recited in the third specification of error, he said: “We leave that as a matter of fact for you, gentlemen of the jury, to say whether or not his going for that faucet was not within the scope of his employment. He says he was obliged to tap ale or porter as he delivered it; that he swears was within the scope of his employment. Now, does it follow as a natural deduction from that, that this porter was not tapped when this faucet broke, and that he started back at the instance of Loftus to procure another faucet? We submit that as a question of fact for you, gentlemen of the jury, whether he was within the legitimate scope of his employment. If you find he was not, that is the end of the case.”

It is impossible to read the charge, and answers to points above referred to, without being convinced that the learned judge intended to submit, and did clearly submit to the jury the question of Carroll’s negligence, and also, especially, the question whether at the time of plaintiff’s injury, the former was acting within the scope of his employment as defendants’ servant. This latter thought is so clearly and so frequently presented that the jurjr could not fail to understand that they were expected to consider and determine that question under all the evidence before them.

Standing alone, that part of the charge recited in the first specification might lead to a different conclusion, and therefore be erroneous; but, considered in connection with other .parts of. the charge, we think it is very manifest that the court did not intend to give the jury any binding instruction as to the question, whether, at the time plaintiff was injured by Carroll’s negligence, the latter was acting within the scope of his employment. In saying, “ Now, if you believe that testimony, that fixed their liability, because by that admission it shows that this man was in their employ, and by their further admission, that he was acting within the scope of his employment,”— we cannot think the learned judge intended to do more than to convey the idea that defendants’ admissions were evidence of, and tended to fix their liability. If more than that was intended, it was a mistake, because the question whether Carroll was acting within the scope of his employment, etc., was clearly a question of fact for the jury: Brunner v. Telegraph Co., 151 Pa. 447; Johnson v. Armour, 18 Fed. R. 491; Dwinelle v. Railroad Co., 120 N. Y. 117. But, whatever impression may have been conveyed by the language quoted in the first specification, it is very evident that the charge, as a whole, could not have been misleading.

The verdict, in favor of the plaintiff, is necessarily predicated of a finding of all essential questions of fact as claimed by him; and there was an abundance of evidence to warrant the jury in doing so. The specifications of error do not require special notice.

There is nothing in either of them that calls for a reversal of the judgment.

Judgment affirmed.