Scheel v. Shaw , 252 Pa. 451 ( 1916 )

Opinion by

Me. Justice Walling,

Arthur E. Shaw, the defendant, resided in German-town and kept his automobile or car about four blocks away on the premises of Wm. E. Volz, who occasionally acted as defendant’s chauffeur.

While so engaged on January 4, 1914, he drove the defendant home and then obtained his permission to take the car and bring home the chauffeur’s family from where they were visiting in another part of the city. While so doing he ran down and injured the plaintiff. The occupants of the car then being the chauffeur, his wife and their four children. On hearing that an accident had occurred, defendant with the chauffeur, went to the place, admitted his ownership of the car, and that Mr. Volz was his chauffeur, took plaintiff to the hospital, and offered other assistance. There is some evidence that Mr. Volz stated in effect that defendant had sent him for his family. And, while defendant may have been present at the time, it does not appear that he ratified such statement. Mr. Volz’s evidence is that defendant gave him permission to take the car; and the testimony would not justify a finding that defendant s.ent Mr. Volz after the latter’s family.

The trial judge directed a verdict for defendant because the proof failed to show that the chauffeur, at the time of the accident, was engaged in the master’s business. This was affirmed by the Superior Court. In our opinion no error was thereby committed.

In an action to recover damages for injuries resulting from an automobile accident, it is necessary for plaintiff to prove not only that defendant was the owner of the car and that the driver was his servant, but that such servant was at the time engaged in the master’s business: Lotz v. Hanlon, 217 Pa. 339; Curran v. Lorch, 243 Pa. 247; Sarver v. Mitchell, 35 Pa. Superior Ct. 69.

“He (plaintiff) must show that the relation of master and servant existed between the defendant and the person in charge of the car at the time of the accident, and that the servant was engaged in his master’s business and was acting within the scope of his employment at the time the tortious act was committed resulting in the injury to the plaintiff. The servant must not only be engaged in and about his master’s business, but must be acting within the scope of his employment in operating the machine, to impose liability upon the master. The test of liability is whether the servant at the time of the plaintiff’s injury was acting within the scope of his authority in furtherance of his master’s business”: Luckett v. Reighard, 248 Pa. 24, 31.

Herein plaintiff’s case fails, for at the time of the accident the chauffeur was engaged in his own business, to-wit, in the transportation of his family, a matter of no concern to defendant. And from the time the chauffeur started for his family until he arrived home with them, he was not engaged in the master’s business. The location of the garage is not controlling, for the work in hand which took the chauffeur to the place of the accident was the transportation of his family,-and not the putting away of the car.

In Moon v. Matthews, 227 Pa. 488, and Hazzard v. Carstairs, 244 Pa. 122, the facts are different. Theré in each case, the chauffeur was acting in the general line of his duty and in obedience to directions given him by a member of defendant’s family, and not to serve any purpose of his own. And the rule stated in Moon v. Matthews, supra, that where the servant is operating the car in such manner as machines are usually operated, it naturally raises a presumption that he is doing so in the master’s service, does not apply here, because in carrying his own family the chauffeur was employing the master’s car for an unusual purpose, and the master is not liable merely because he gave the servant permission so to do.

The efforts of the owner of a car to relieve the sufferings of one injured thereby cannot be made the basis of a legal liability, unless by reason of some agreement or admission. And the declarations of the servant made after an accident are not evidence against the master unless ratified by him.

In view of the comprehensive opinion of Judge Kephart, we are spared further discussion.

The assignment of error is overruled and the judgment of the Superior Court is affirmed.