Herrington v. Hill

Opinion by

Head, J.,

If at the conclusion of the trial there was any question of fact to be submitted to . the jury, no complaint can justly be made of the manner of the submission and no assignment of error makes any such complaint. The able counsel for appellant sought a binding direction in his favor in the court below and thereafter urged upon that court and this court the entry of a judgment for the defendant notwithstanding the verdict. If it can be shown that the learned trial judge could not have given such binding direction without committing error, then there is but little in this appeal that requires discussion.

There is practically no dispute as to the facts that the plaintiff, while driving along the public highway, was seriously injured by a collision with an automobile owned by the defendant. Further, that such injury was not caused by any negligent act or omission of her own but resulted entirely from the negligent manner in which the automobile was being operated. The defendant, the owner of the car, was neither driving it nor riding in it at the time of the collision, but it was then being operated by his fifteen-year-old son. His contention in a word is, that the burden was upon the plaintiff, under such circumstances, to affirmatively prove that the car was then being operated either by the direction of the owner or in the furtherance of his business, and that the plaintiff’s evidence failed in this respect. In the ordinary case, where the owner of a car duly registered had hired or loaned it to another person, he would not be responsible for the negligent act of the latter unless the plaintiff succeeded in discharging the burden of proof just referred to.

It appears, in the present case, that the defendant was not only the owner of the car in question but was the agent for the sale of cars of that kind and operated this car under what is known as a dealer’s license. Such licenses are issued in proper cases at a rate very much less than that paid by the owner of a car who desires to devote it to general use. The statute provides that such limited licenses shall be granted only upon the written application of the person desiring it setting forth the necessary facts, and such application must be verified by the oath or affirmation of the applicant. The statute further provides: “Such cars shall be operated by licensed drivers only. A dealer’s tag, issued under the provisions of this section, shall not be used for any other purpose than testing or demonstrating the vehicle to a prospective purchaser, or in removing the same from pláce to place for the purpose of saleSection 7 of the Act of April 21, 1911.

We are not required to undertake to show, from the application of sound principles of reasoning, that under such circumstances and in the absence of proof to the contrary, a jury would be warranted in drawing the inference that a car operated under such a license was presumptively being operated within the lawful limits of the license. That question has recently been disposed of by the Supreme Court. In Haring v. Connell, 244 Pa. 439, Mr. Justice Brown, in delivering the opinion of the court, said: “The only evidence which appellant offered to show that appellees were operating the automobile was the number of the license tag upon it. This tag represented a license which had been issued to them.” After pointing out that the license indicated by the tag was a special limited license known as a “dealer’s license”; the statutory provisions declaring how such a license may be obtained; the prohibition of the use of a car operated under such license except for certain designated purposes, the opinion continues: “One of these (dealer’s tags) was on the car which ran into the appellant, and, as it was issued upon the express condition stated, the presumption is that the appellees had complied with the act of assembly and that the tag was on a car operated by them, or by some one for them, for the purpose of demonstrating it to a prospective purchaser or in taking it to some' place for the purpose of sale. The tag was, therefore, prima facie evidence that, at the time of the collision, the appellees, or some one acting under their authority, were operating the car, and the burden was shifted to them of showing that it was not so operated.”

When therefore the plaintiff in the present case had shown, by proof, the injury she had sustained and that such injury resulted from a collision with a car owned by the defendant which carried a dealer’s license tag and that such collision resulted solely from the negligent operation of the car, she had made out á prima facie case against this defendant. If then there had been no countervailing evidence offered by the defendant to overcome the presumption, the plaintiff’s case must have been Submitted to the jury for their determination of the cause of the injury and the extent of the damages that would compensate it. The defendant of course did offer evidence for the purpose of overcoming such presumption, but it was all in parol, and the credibility of the witnesses, interested as they were, was necessarily a question for the consideration of the jury.

But the plaintiff had something more than the presumption already referred to upon which her claim might rest. The defendant himself testified as follows: “Q. Mr. Hill, explain what you meant by the word demonstrating? A. Well to demonstrate is to explain and show the operation of the automobile, ability to go fast or slow or climb hills, etc.” At another place in his testimony we find the following: “Q. Mr. Hill, when you furnished the automobile, that evening or permitted your son John to take it, to take the young people with him, you furnished him and permitted him to take the automobile from the instincts of a father, did you not, for his pleasure? A. Yes, sir, I considered that the car all the time was a demonstration wherever it was seen. Q. You considered it that? A. All the time yes, the more it was on the street, the better it was for me.” It is true in other portions of his testimony he declares the car was not being demonstrated at the time of the injury, and although he had permitted his son to take it to drive a party of his friends to a given place from which he was to return, the boy went outside the permission given and drove to another place, and it was whilst so driving the car the injury occurred. But it does not follow, under testimony of that kind, the jury was obliged to take one portion of the defendant’s testimony rather than another. It clearly became a question for their determination whether or not, according to the defendant’s conception of the situation, he did not consider he was lawfully using the car even when he permitted it to be taken by his son who was not a licensed driver at all, and who was not qualified to secure a driver’s license under ordinary circumstances because of his extreme youth.

We are of opinion therefore that the learned trial judge could not have done otherwise than submit the case to the jury, and this he did, as we have already said, in a charge which gave to the defendant the benefit of every consideration that might relieve him from liability. The first and second assignments must therefore be overruled. The third and fourth assignments are founded upon objections to certain questions propounded to the son of the defendant who was actually driving the car. The only purpose of these questions was to elicit the facts as to the age of the boy at the time of the collision and that he had no license of any kind authorizing him to operate a car. We cannot perceive how the introduction of this testimony violated any established rule of evidence or wrongfully prejudiced the case of the defendant. The assignments cannot therefore be sustained. On an examination of the whole record, we are satisfied the case was correctly tried in the court below and the judgment entered on the verdict must stand.

Judgment affirmed.