Jordan v. Vare

Opinion by Porter, J., Mrs. Jordan, while walking along the sidewalk at Fifty-second street and Baltimore avenue, Philadelphia, was knocked down and seriously injured by a horse which had escaped from his driver. The plaintiffs brought this action to recover damages for said injuries, alleging that the escape of the horse from control and his running away had been due to the negligence of the defendant or his employee. The trial resulted in a verdict and judgment in favor of the plaintiffs and the defendant appeals. • The evidence introduced by the plaintiffs may be accepted as establishing the following facts: P. C. Eisele had secured from the City of Philadelphia the contract for cleaning the streets in the eighth cleaning district of the city. He had long been employed by the defendant, but in 1913 started in business for himself. The defendant, having a surplus/of teams, loaned to Eisele, a number of teams, .one being that in question. Eisele, through his superintendent Eice, hired Hannibal Pendleton as a driver, and put him in charge of this team. The wages of Pendleton were regularly paid by Eisele and he did his work only under the control of Eisele and his superintendent, Eice. On April 15, 1913, some weeks after Pendleton had been engaged in the work, he was driving the team attached to' a rotary street sweeper on Fifty-second street and in making a turn one of the horses slipped on the wet asphalt pavement and fell. The driver thereupon got down from his seat, unfastened [205] the traces and breast chains of the standing horse, unsnapped the reins between the horses, and leaving the horse standing unhitched tried to get the fallen horse upon his feet; that horse in struggling kicked the standing horse on the leg, whereupon the latter ran away and caused the injuries complained of. Pendleton, the driver, was called as a witness by the plaintiffs and testified that he was hired by Rice, the superintendent for Eisele, that he was paid by Eisele and that he never had any talk with the defendant. Eisele was also called as a witness by the plaintiffs and testified that he alone had the contract for the street cleaning in the eighth district and that the defendant had no interest in the contract or the work done under it, that the defendant had loaned him the team which Pendleton was driving and that Pendleton was his employee. There was not a scintilla of evidence to the effect that this defendant had in any manner interfered with or exercised any control over the work for which Eisele had the contract. The evidence produced by the defendant was in entire harmony, so far as his connection with the work was concerned, with that of the witnesses for the plaintiffs. The defendant testified that he was the owner of the team in question, that he had loaned the team and others to Eisele, who had formerly been a faithful employee, and that he did this without expectation of compensation. It is, however, contended on the part of the appellees that there was sufficient evidence in the case to warrant a finding that the defendant was really interested in the contract for cleaning the streets in the eighth district, that the contract was taken in the name of Eisele but that he was really merely the representative of the defendant. The evidence which is supposed to furnish a foundation for this contention is, (1) That the defendant had loaned this and other teams to Eisele, that the property of the defendant was used in doing the work; and (2) That a certain application for indemnity insurance was made and a policy taken out in the name [206] of “E. H. Yare and P. C. Eisele as their interests may appear.” With regard to the first item of evidence we deem it sufficient to say that the mere fact that a man has been generous with a friend or relative or faithful former employee does not, in the absence of something more, warrant a jury in finding that such generosity was prompted by a fraudulent motive, or to conceal a real fraudulent design. With regard to the policy of insurance, it might be sufficient to say that there was no evidence that that policy was taken out by the direction, or with the consent of this defendant or that he ever knew of its existence. The application for the policy seems to have been made by one English, an insurance broker, and to him the policies were delivered. The plaintiffs did not see fit to call Mr. English as a witness and that left the case without any evidence that English had been authorized by this defendant to make application for a policy in this form. It is, however, proper to observe that this application referred to “The draught or driving animals or vehicles stabled at Beech and Columbia avenues, and 3915 Market street, Philadelphia,” and, again “The draught or driving animals or vehicles are used in Philadelphia (Kensington and West Philadelphia Districts) and vicinity.” Even if it had been shown that this defendant had authorized the application to be made in this form, this would not have been sufficient to warrant a finding that the defendant was interested in the eighth district, which was in West Philadelphia. The paragraphs above quoted were inserted for the purpose of identifying the teams to be covered by the policy, and as a means to that end reference was made to the places where the horses were to be stabled and the districts where they worked.. The stable at Beech and Columbia avenues was used in connection with the work of this- defendant, while that at.3915- Market street was used in connection with the work of Eisele. The policy was to b.e issued in the name of Edwin H. Yare and P. C. Eisele “as their interests iqay appear.” If the policy issued in [207] accordance with the application and a team while being used by Eisele and stabled at 8915 Market street caused any damage Eisele would be protected, although the team was owned by this defendant. If the defendant had taken away the team which he had loaned to Eisele and returned it to his stable at Beech and Columbia avenues and the team while there had caused any damage the defendant would have been protected. This evidence was certainly not sufficient to warrant a finding that this defendant had any interest in the work upon which the team, of which he was the owner, (one of the horses of which caused this injury) was engaged. If a man loans or hires a horse to another, to be used for the purposes of the latter, the owner of the horse is in no wise responsible for the negligent manner in which the horse may be used: Bard v. Yohn, 26 Pa. 482; Sarver v. Mitchell, 35 Pa. Superior Ct. 69; Durham v. Strauss, 38 Pa. Superior Ct. 620; Kelton v. Fifer, 26 Pa. Superior Ct. 603; Lotz v. Hanlon, 217 Pa. 339; Herbstritt v. Lumber Co., 212 Pa. 495. The request of the defendant for binding instructions ought to have been affirmed, and, this not having been done, judgment should have been entered in favor of the defendant notwithstanding the verdict. The judgments are reversed and the record is remitted to the court below with direction to enter judgment in favor of the defendant non obstante veredicto.