Exner v. Gangewere

Opinion by

Me. Justice McBeide,

This is an action in trespass for personal injuries suffered by plaintiffs, Norman E. Exner and Catherine M. Exner, when their automobile collided with that of the defendant, Bay L. Gangewere, which was then being driven by his son, Robert L. Jacoby. The only issues submitted to the jury were (1) Was Jacoby the servant of the defendant at the time of the accident? and (2) Was Jacoby then in the course and scope of his employment? ¹

The jury answered both questions in the affirmative. Defendant’s motion for judgment n.o.v. was denied and no appeal has been taken from that order. Hence, we are precluded from considering that issue. Harr, Sec’y. of Banking v. Fairmount Foundry, Inc., 331 Pa. 59, 64 200 Atl. 46 (1938). Defendant’s motion for new trial was granted. Plaintiffs appeal.

The court below ordered the new trial on the stated ground that while the evidence supported the jury’s finding on the first question submitted, i.e., the master-servant relationship, its finding on the second question as to scope of employment was against the weight of the evidence.

The question presented for our decision therefore is whether the action of the court below manifests a “palpable abuse of discretion”. Glaister v. Eazor Express, Inc., 390 Pa. 485, 136 A. 2d 97 (1957); Smith v. Blumberg’s Son, Inc., 388 Pa. 146, 130 A. 2d 437 (1957).

To resolve this question we too must examine the record and assess the weight of the evidence; not, however, as the trial judge, to determine whether the preponderance of the evidence opposes the verdict, but rather to determine whether the court below in so finding plainly exceeded the limits of judicial discretion and invaded the exclusive domain of the jury.

The evidence shows that Jacoby is the defendant’s son and although they did not live in the same house defendant regularly visited Jacoby and his other children. At the time of this accident Jacoby was 18 years of age and a high school student. Defendant had, on previous occasions, given Jacoby the use of his automobile for the purpose of doing errands for himself and his mother. Not long before the accident Jacoby had taken the car to school where he relined its brakes for defendant who supplied the materials and paid for the work. Jacoby had previously washed and waxed the car and had been paid for it. On the day of the accident the defendant was visiting Jacoby’s home and Jacoby asked for permission to clean and wax the car. The permission was granted and defendant gave him the keys. While there were waxing materials in the automobile, Jacoby used his own. He took the car about 1 p.m. and drove to the home of a friend in nearby Allentown. Having picked up his Mend they drove together to Jim Thorpe, a distance of 35 miles, where Jacoby commenced to wax the car. Defendant testified that Jacoby asked permission to do this work at a nearby gas station; that he had not given him permission to go to Jim. Thorpe, nor, on the other hand, had he forbidden it. Jacoby testified that there was no mention of washing the car at the gas station or at any other specific location. He also testified that in going to Jim Thorpe he had originally in mind but abandoned the idea of visiting a girl and other persons whom, he had met at a wedding. Jacoby never told defendant he was going to drive to Jim Thorpe; he never asked permission to go to Jim Thorpe; and he admitted that he. “did not go to Jim Thorpe that day on any business of defendant”.

When the existence or scope of an employment or agency depends upon oral testimony all of the circumstances must be considered and where the evidence is in conflict the question is peculiarly one for the jury. Curran v. Lorch, 243 Pa. 247, 249, 90 Atl. 62 (1914); Singer Mfg. Co. v. Christian, 211 Pa. 534, 540, 60 Atl. 1087 (1905); Simmons v. Penna. R. R., 199 Pa. 232, 238, 48 Atl. 1070 (1901). However, the trial Judge, while recognizing this principle, carefully analyzed and reviewed the testimony and in his opinion granting a new trial said:

“The weight and fair preponderance of the evidence favors the defendant, Say L. Gangewere, that Robert Jacoby was not acting within the scope of his employment, at the time this accident occurred.

“The only conversation that Say L. Gangewere liad with Robert Jacoby was relative to washing and waxing the car, and he said that he would take the car down to the gas station, because he could not do it in front of the house as it was too cold outside, and they had washing facilities available at the gas station, and he told him to go ahead.

“The Court concludes that this testimony of the defendant, Ray L. Gangewere, is credible and constituted authority for Robert Jacoby to take the car to the gas station. The plaintiffs admit that Robert Jacoby was not specifically authorized or told by the defendant to go to Jim Thorpe to wash and wax the car, and the only authority Robert Jacoby had from Ray L. Gangewere was to take the car to the gas station at Chapel and Emmaus Avenue. The logical and proper place to wash the car was at the gas station, where they had washing facilities available, and the Court does not believe the testimony of Robert Jacoby that he drove his father’s car from 2232 Cypress Avenue, Salisbury Township, to Jim Thorpe, a distance of approximately 35 miles, to a place where there were no facilities to wash . . . and wax it . . . and this testimony does not have the ring of truthfulness to it, and, in the opinion of the Court, is incredible. The Court gives more credence to the testimony that he drove to Jim Thorpe to visit a girl and that was the primary purpose in making the trip to Jim Thorpe, and when he drove from Allentown to Jim Thorpe, he drove without the authority of his father, Ray L. Gangewere, and for his own pleasure.

“After a careful consideration of the evidence offered by the defendant to impeach the credibility of the witness offered by the plaintiffs [Jacoby was plaintiffs’ only witness], after observing the demeanor of the witness on the stand, and his failure to be consistent in his testimony adduced at the trial when questioned concerning the statements given under oath before Nellie J. Zweifel, Notary Public, on January 10, 1956, and his lack of memory and evasiveness on important questions asked at the time of taking depositions before the Notary Public and at the trial of the case, the Court comes to the conclusion that in many respects the testimony of Robert Jacoby was incredible; . . . [The] testimony of defendant [as to employing Jacoby to wash and wax the car] is credible and constituted authority for Jacoby to take the car to the gas station.”

Whether we, the appellate court, who did not see or hear the witnesses, would have believed or disbelieved Jacoby is not the test which is applicable in this Court. Here, the trial Judge granted a new trial because, after observing the demeanor of Jacoby, plaintiffs’ only witness, he was of the opinion that in many respects the testimony seemed incredible. We cannot say that the trial Judge manifestly and palpably abused his discretion in directing that another jury pass on the facts and the credibility of the witnesses.

Accordingly, the order of the court below is affirmed.

1 In a prior action brought by the plaintiffs against Jacoby plaintiffs had recovered verdicts against him. In the present case 1he amount of damages was stipulated and the trial was to determine only the present defendant’s liability for Jacoby’s acts.