DocketNumber: Appeal, 229
Citation Numbers: 182 A. 149, 120 Pa. Super. 231, 1935 Pa. Super. LEXIS 143
Judges: Keller, Baldrige, Stadteeld, Parker, James, Rhodes
Filed Date: 10/10/1935
Status: Precedential
Modified Date: 10/19/2024
Argued October 10, 1935. Appellant obtained a verdict in the court below for *Page 233 personal injuries suffered in a collision with defendant's automobile while riding in appellant's automobile driven by his son. In its opinion granting a new trial, from which order this appeal was taken, the court stated that, "the trial judge erred in refusing to instruct the jury as a rule of law that under such conditions negligence of the son, if he was negligent, was the negligence of the father. Because of this error and without considering the rule in cases of joint enterprise, also urged by the defendant, a pew trial was granted."
It is a settled rule of the appellate courts of this state that an order granting a new trial will not be reversed unless a palpable abuse of discretion on the part of the trial judge is disclosed, or unless an erroneous rule of law which in the circumstances necessarily controls the outcome of the case is certified by the trial judge as the sole reason for his action and the reason advanced must not only be erroneous in law but it must appear that the court would have refused the new trial except for the reason stated: Leonard v. Houston,
Plaintiff (owner of the automobile) had ridden in the car with his son as the driver from his home to a church entertainment and was riding in the right rear seat on his return to his home, accompanied by a guest, with his son as the driver when the accident happened. Both the testimony of the son and the father establish that the car was driven by the son with the permission of the father.
In order that liability be attached against the owner for the negligent operation of an automobile, the legal *Page 234
status of master and servant or principal and agent must exist. The mere relationship of father and son does not of itself establish such a status and further facts must be shown to establish liability. Under the circumstances of this case where the plaintiff was the owner of the automobile which was being driven with his permission by his son, it must be presumed that the car and the driver were under the control of the owner as fully as if the driver was a paid servant. The car was being driven for the convenience and for the purposes of the owner and because it also served for the convenience of the son and the other passenger did not relieve the owner of his responsibility. "A man out riding in his car is not relieved from responsibility for its management because, with his permission, another is acting as driver; and this is especially so where the owner tacitly assents to the manner in which the car is driven. There is a presumption, . . . . . . that an owner present in his car has power to control it": Bell v. Jacobs,
Order affirmed.
Stroll v. Levan , 39 Pa. 177 ( 1861 )
Bell v. Jacobs , 261 Pa. 204 ( 1918 )
Leonard v. Houston , 118 Pa. Super. 219 ( 1935 )
Bryant v. Pacific Electric Railway Co. , 174 Cal. 737 ( 1917 )
Gourley v. Boyle , 346 Pa. 113 ( 1942 )
Beam v. Pittsburgh Railways Co. , 366 Pa. 360 ( 1951 )
SMALICH v. Westfall , 440 Pa. 409 ( 1970 )
Von Cannon v. Philadelphia Transportation Co. , 148 Pa. Super. 330 ( 1941 )
Stafford v. Roadway Transit Co. , 70 F. Supp. 555 ( 1947 )
Mazi v. McANLIS , 365 Pa. 114 ( 1950 )
Myles v. Philadelphia Transp. Co. (Two Cases) , 189 F.2d 1014 ( 1951 )