Opinion
October 6, 1936.
November 23, 1936.
Negligence — Automobiles — Master and servant — Newspaper publishing company — Branch manager — Accident on way to work — Markings on car — Newspapers in car.
1. In an action for injuries sustained when plaintiff was struck by an automobile operated by an employee of defendant, a newspaper publishing company, in which it appeared that the employee was a branch manager for defendant with duties involving the distribution of newspapers to carriers in a certain district of the city, that the car was owned by him and used to travel to and from his place of employment and also in going about in his district, that defendant paid him a weekly sum to defray the expenses of operation of the car, that his work did not begin until he reached his place of employment, that the accident occurred while he was traveling from his home to the place of his employment, before the time for him to go on duty had arrived and before he had reached either defendant's place of business or the district in which his work would be done, and that there was nothing to indicate that the car was being used in and about defendant's business or that defendant had, or exercised, any control whatever over the employee or over the car, at the time of the accident, the evidence was on appeal held insufficient as matter of law to establish a relation between the employee and defendant at the time of the accident such as to render defendant liable. [450-51]
2. In the circumstances, it was immaterial that at the time of the accident there were some copies of the newspaper in the car, which contained no markings to indicate that it was used in and about defendant's business. [450-51]
Before KEPHART, C. J., SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES, JJ.
Appeal, No. 235, March T., 1936, by defendant, from judgment of C. P. Allegheny Co., Oct. T., 1933, No. 2114, in case of Hugh Davis v. Pitt Publishing Company. Judgment reversed and here entered for defendant.
Trespass for personal injuries. Before T. M. MARSHALL, J.
The opinion of the Supreme Court states the facts.
Verdict for plaintiff in sum of $3,000, and judgment thereon. Defendant appealed.
Error assigned, among others, was refusal of judgment n. o. v.
Charles F. Patterson, of Patterson Sherrard, for appellant.
A. M. Oliver, of Dipple Oliver, with him David B. Pitler, for appellee.
Argued October 6, 1936.
Defendant's motion for judgment n. o. v. should have been granted. Plaintiff was struck by an automobile owned and driven by J. A. Jardine shortly before nine o'clock in the morning on a public highway in what is called the North Side of the City of Pittsburgh. Jardine lived on the North Side and was employed by the defendant on the South Side, the Allegheny River separating the two Sides. Defendant publishes a newspaper. Jardine was a branch manager for defendant with duties involving the distribution of newspapers to carriers in a certain district on the South Side. He used his car, described as a "Chevy Coach" to travel to and from his place of employment and also in going about in the district in which he was branch manager. His work did not begin until he reached his place of employment. Defendant paid him $15.00 a week to defray the "expenses for the operation of that car." On the morning of the accident he was traveling from his home to the place of his employment, a distance of several miles. He was on his way to attend what the evidence calls, without describing, a "Pep meeting." The car contained no markings to indicate that it was used in and about defendant's business though, when the accident took place, there were some copies of the newspaper in the car; in the circumstances, we regard that fact as immaterial: Deater v. Penn Mach. Co., 311 Pa. 291, 166 A. 846.
The question is whether the relation in which Jardine stood to the defendant at the time of the accident renders the defendant liable. It is to be observed that he had not yet reached either defendant's place of business or the district in which his work would be done; the time for him to go on duty had not arrived. The car was his and not defendant's. It was not being used in and about the defendant's business at the time. There is nothing to indicate that defendant had, or exercised, any control whatever either over Jardine or over the car at the time. Jardine was then his own master. In such circumstances defendant is not responsible for Jardine's negligence: Wesolowski v. Hancock Ins. Co., 308 Pa. 117, 162 A. 166; Roberts v. Scott Bros., 315 Pa. 341, 172 A. 681.
For a collection of cases see Note 87 A.L.R., p. 787.
Plaintiff was not injured, as was said in Loper v. Publishing Co., 312 Pa. 580, 583, 169 A. 374, "while [the servant was] engaged in that master's business and within the scope of his employment by the master." Nor does his evidence show, as plaintiff's did in Cusick v. Hutchinson, 318 Pa. 316, 177 A. 749, that the particular trip had been authorized and was controlled by the defendant or someone authorized to direct the work. The same conclusion is required if Jardine's relation to his employer is considered in the light of the Workmen's Compensation cases holding that an employee going to or returning from work out of hours is, in virtue of that fact alone, not regarded as in the course of his employment: Palko v. Taylor-McCoy Coal Coke Co., 289 Pa. 401, 405, 137 A. 625; Bossard v. Nallin et al., 93 Pa. Super. 301.
Judgment reversed and here entered for defendant.