Farbo v. Caskey

Citations

• 272 Pa. 573
• 116 A. 543
• 1922 Pa. LEXIS 871

Syllabus

<p>Negligence — Automobiles—Master and servant — Master’s business— Statement of claim — •Evidence — Placing admission on record, no affidavit of defense — Practice Act of May lk, 1915, P. Tj. k83.</p> <p>1. In an action to recover damages for injuries resulting from an automobile accident, it is necessary for plaintiff to prove, in some adequate manner, not only that defendant was the owner of the car, and the driver his servant, but that such servant was at the time engaged in the master’s business.</p> <p>2. The fact that the defendant was the owner of the car in itself alone furnishes no foundation for his liability.</p> <p>3. Where the statement of claim avers that the driver was defendant’s servant or agent, but does not specifically aver that he was engaged in the performance of defendant’s service at the time of the accident, and there is nothing in the evidence to show that the driver was so engaged and such fact is in no way put in the record, it is reversible error for the court to charge that the averment that the automobile was driven by defendant’s servant, was a sufficient averment on which to base liability, if the driver was negligent.</p> <p>4. Admissions, under the Act of May 14, 1918, P. L. 483, by failure of denial by affidavit of defense, are not placed on the record by the court in his charge stating these facts to the stenographer and jury; he must direct the facts to be placed on the notes of trial.</p> <p>8. Since the practice was not established when this case was tried, the appellate court will not enter judgment for defendant n. o. v., but will send the case back for another trial, in order that the true situation as to the driver’s employment at the time of the accident may be properly developed.</p>