(116 A.) is it disputed that he was driving the auto- | presence of counsel, that such fact was alleged, mobile on a mission of his own-to attend a and not denied, and must be treated as admitmeeting of a fraternal organization of which ted, and by directing such fact to be placed he was a member-after obtaining permis- on the notes of the trial, or by counsel directsion from his father to so use it. The lia- ing to be placed on the notes of the trial cerbility of the owner of a motor vehicle, for tain detailed facts which they admit, or by bility of the owner of a motor vehicle, for counsel offering in evidence specific parts of the statement of claim, with what counsel conceive to be the replies thereto contained in the affidavit of defense, and having the facts thus sought to be established placed on the notes of trial as admitted, because averred in the statement and not denied in the affidavit of defense. the tortious act of a driver of his car which causes injury to a third person, rests, either on the relation of master and servant or of principal and agent, between the owner and the driver. Speaking of a state of facts very similar to those we are now considering, the Superior Court in Kunkle v. Thompson, 67 Pa. Super. Ct. 37, said: "The action is not brought against the son who operated the car, but seeks to charge the absent owner with the consequences of the negligent operation of his car by another. Under such circumstances there is surely no need to discuss the fundamental principles underlying the long line of decisions-nor even for a citation of the cases-which declare that under such a state of facts the relation of master and servant must be established or the doctrine of respondeat superior may not successfully be invoked. This principle has been steadily and continuously asserted by the Supreme Court and this court. * * The liability, if any, of the defendant cannot rest merely on the ground that he was the father of the person who drove the car. The fact that he was the owner of the car furnishes no foundation for his liability in the case." There the son, living with his father, was but 19 years of age "practically manumitted"; here, while he was living with the father, he was 24 years old, and employed on his own account. Nothing was shown which would charge the defendant with responsibility for his son's negligence. The residence of the son with his father, and the circumstance that the automobile may have been used at times for the pleasure, comfort, or convenience of the family, are not sufficient to establish liability. The judgment is affirmed. (272 Pa. 573) FARBO v. CASKEY. (Supreme Court of Pennsylvania. Feb. 6, 1922.) 2. Master and servant 330 (1) -Proof of automobile driver's agency essential to recovery for negligence. Plaintiff, suing for injuries sustained when struck by defendant's automobile, was required to prove, not only that defendant was the owner of the automobile and that the driver was his servant, but also that such servant was at the time engaged in the owner's business. 3. Pleading 377-Undenied allegation that driver was owner's agent requires no proof that negligent act was done in the course of such agency. Pa. St. 1920, § 17193), where an allegation Under Practice Act 1915 (P. L. 485, § 13; in statement of claim that a negligent act was committed by defendant's agent is not denied in affidavit of defense, plaintiff need not prove that the negligent person was defendant's agent, and that the negligent act was done in the course of such agency. Appeal from Court of Common Pleas, Philadelphia County; Thomas D. Finletter, Judge. Action by Carmel Farbo against Wesley M. Caskey. Judgment for plaintiff, and defendant appeals. Judgment reversed, with a new venire. Argued before FRAZER, WALLING, SIMPSON, KEPHART, and SCHAFFER, JJ. Owen J. Roberts (of Roberts, Montgomery & McKeehan), and Robert T. McCracken, both of Philadelphia, for appellant. David Lewis, of Philadelphia, for appellee. SCHAFFER, J. Defendant appeals from a judgment recovered in an action for damages for injuries received by plaintiff, who was struck by appellant's automobile. [1, 2] Appellant contends there was no suf1. Evidence 262-Trial 34-Undenied al- ficient proof that the automobile, which adlegation not proof of fact alleged unless prop-mittedly belonged to defendant, was being erly placed before jury by court or counsel. driven at the time of the accident on the In action for injuries sustained by plaintiff owner's business or errand. The trial was when struck by defendant's automobile, unde- allowed to proceed on the theory that this nied allegation in statement of claim that the point was adequately covered by the undeautomobile was being driven by defendant's agent at the time of the accident held not proof nied averments of plaintiff's declaration; alof such fact under Practice Act 1915 (P. L. though the trial judge seems to have had 485, § 13; Pa. St. 1920, § 17193), where such some misgivings as to whether the fact of fact was not placed before jury by presiding the chauffeur acting within the scope of his judge stating to official stenographer, in the alleged agency was sufficiently proven, as is For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes missions, for the first time put in the case just as the curtain drops. In an unbroken line of decisions, we have held that, 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 was his servant, but that such servant was at the time engaged in the master's business (a typical case is Scheel v. Shaw, 252 Pa. 451, 97 Atl. 685); and in Markle v. Perot, 273 Pa. 4, 116 Atl. 542 (opinion handed down herewith) we reiterate the declaration that the fact defendant was the owner of the car in itself alone furnishes no foundation for his liability. [3] A fair construction of section 13 of the Practice Act of 1915 (P. L. 483, 485; Pa. St. 1920, § 17193) relieves one, who has pleaded the agency of the person committing the act complained of, in the manner here pursued, from producing testimony to show such agency, or that the negligent act was done in the course thereof, when these facts are not denied in an affidavit of defense, if due proof thereof is made in accordance with the methods laid down in Buehler v. United States Fashion Plate Co., supra; yet, as said by the trial judge in the instant case, good pleading dictates, in addition to an averment of agency, a further allegation that the agent was shown by his statement in the charge that, [no opportunity to discuss or explain the adin his opinion, it would have been better and safer pleading to have expressly averred that the motorcar was being driven by defendant's agent or servant in and about his employer's business. The statement of claim does not specifically aver that the chauffeur was, as a matter of fact, engaged in the performance of service for defendant at the time of the accident, but left that open to inference from the averment of the agency. Answering a point of defendant, which raised the question, the court in its general charge instructed the jury the averment that the automobile was driven by defendant's servant or agent was a sufficient averment on which to base liability, if the driver was negligent. The difficulty, however, with this assumption is the fact that there was no evidence properly presented on the subject. Although neither the statement of claim nor any part of it had been offered in evidence, the trial judge treated certain of its averments as in the proofs and before the jury, saying to them that there was the admission in the written pleadings, because of the undenied averments in the statement of claim, that the automobile was driven by the defendant's servant or employee, and instructed them this averment was sufficient upon which to base liability if the driver was negligent. This was contrary to our ruling in Buehler v. United States Fashion Plate Co., 269 Pa. 428, 112 Atl. 632, where we pointed out that—as a matter of fact acting within the scope "A fact averred in the statement of claim, and not specifically denied in the affidavit of defense, is an admitted fact, but does not become such for purposes of trial, unless put before the jury in one of three ways: (1) by the presiding judge stating to the official stenographer, in the presence of counsel, that certain facts, which he details and directs to be placed on the notes of trial, are averred in the statement and not denied in the affidavit, and hence must be treated as admitted; or (2) by counsel directing to be placed on such notes certain detailed facts, which they admit; or (3) by offering in evidence specific parts of the statement of claim, with what counsel conceive to be the replies thereto contained in the affidavit of defense, and having the facts thus sought to be established placed on the notes of trial as admitted, because averred' in the statement and not denied in the affidavit of defense." None of the methods indicated was pursued in this case, but, after the testimony was closed, and counsel had summed up, the court in its charge stated the fact we have indicated, essential to plaintiff's recovery, as though it had been put in the record and was before the jury as proof in the case. This does not conform to the practice we have laid down. It will be apparent at a glance that the method here followed might be most disastrous to one side or the other in a trial. of his employment at the time of the acci- Had the Here, the course pursued by the court below may have misled plaintiff to his great disadvantage, indeed to his undoing-something we know was never intended by the just judge who tried this case. trial been conducted in accord with the rules heretofore laid down by us, it is to be assumed plaintiff's counsel would either have advanced his proofs, on the question of the driver's mission being on his master's account, or protected himself in other adequate ways; but the rulings on that point being in plaintiff's favor, he doubtless was led to feel he could rest content with the case as it stood. It is but fair to state, however, that our opinion in Buehler v. United States Fashion Plate Co. had not been published at the time of the present trial, and neither the court below nor counsel had the benefit thereof. Under the circumstances, we shall not enter judgment for defendant non obstante veredicto, but send the case back for another trial, in order that the true situation, as to the driver's employment at the time of accident, may be properly developed. The judgment is reversed, with a new ve (116 A.) (273 Pa. 42) (Supreme Court of Pennsylvania. Feb. 6, 1. Sales 89-Parties to executory sales contracts could change contracts to bailment leases. While a contract for sale of trucks remained executory, it was competent for the parties to change them to bailment leases, and, having done so, the bailment leases became the actual final agreements. 2. Appeal and error 1056(1)-Exclusion of instrument which would not have changed legal effect of transactions held harmless. In replevin to recover possession of trucks delivered to defendants upon bailment leases, exclusion of sale proposals entered into by the parties before the execution of the bailment leases, if error, was harmless in the absence of allegations of fraud, accident, or mistake, since the admission of the sale proposals would not have changed the legal effect of the transactions. 3. Bailment 23-Bailor's failure to stipulate for return did not preclude recovery on bailee's default. Failure to stipulate in bailment lease for return of property did not preclude recovery of property on bailee's failure to make installment payments. 4. Bailment 28-Failure to sue for possession until long after default under bailment leases did not preclude bailor from recovering possession. Plaintiff who had delivered trucks to defendant under bailment leases did not waive right to retake possession in accordance with the terms of the contracts, on lessee's failure to make installment payments, by failure to cause writ of replevin to be issued until long after installments became due, where leases were not modified, and plaintiff, while defendant was in default, demanded payments due, and notified defendant that, on his failure to make payments, plaintiff would be obliged to retake possession. 5. Bailment 31 (2) Evidence as to who would ultimately have been owner of truck under contract held immaterial. damages defendants sustained by loss of trucks held not error where plaintiff was entitled to repossess itself of trucks because of defendant's default; the extent to which defendant was damaged being therefore immaterial. Appeal from Court of Common Pleas, Philadelphia County; William H. Shoemaker, Judge. Action by the Federal Sales Company of Philadelphia, to use of Bankers' Commercial Security Company, against Henry P. Kiefer and another. Judgment for plaintiff, and defendants appeal. Affirmed. Argued before FRAZER, WALLING, SIMPSON, KEPHART, and SCHAFFER, JJ. Frederick J. Knaus and Otto Kraus, Jr., both of Philadelphia, for appellants. Owen J. Roberts, George G. Chandler and George A. Maene, all of Philadelphia, for appellee. volves the title and right of possession of WALLING, J. This action of replevin infive motortrucks, each of which the legal plaintiff delivered to defendants upon a bailment lease, providing for 18 monthly payments of rent, for which promissory notes were given, and containing, inter alia, the further provision, viz.: "Upon any default in payment of any installment of rental, or upon breach of any condition or covenant herein made by the lessee, the lessee shall on demand of the lessor forthwith deliver the car in as good condition as when received by the lessee (ordinary wear and tear excepted) to the lessor, and should lessee fail or refuse upon such demand to deliver the car as aforesaid to lessor, the lessee agrees that the lessor shall have the right without any further notice or demand forthwith to terminate this lease and to take possession of the car wherever found, and for such purpose lessee hereby licenses and authorizes lessor to enter the premises of the lessee, with or without force or process of law, and forthwith to take possession of the car." installments on each lease, and thereupon Default was made as to the payment of plaintiff regained possession of the trucks In replevin to recover possession of trucks by the writ of replevin here in question. Dedelivered to defendant by plaintiff under bail- fendants filed an affidavit of defense, and ment leases, on defendant's failure to make the case went to jury trial, where there was installment payments due under the leases, a directed verdict for plaintiff, and, from exclusion of parol evidence as to who would ultimately have been owner of trucks held proper; such question being immaterial in view of plaintiff's right to repossess himself of trucks. 6. Bailment 31 (2)-Exclusion of evidence as to damages to defendants by loss of truck of which plaintiff rightfully repossessed itself on defendant's default held not error. In replevin to recover possession of trucks delivered by plaintiff to defendant under bailment leases, on defendant's default in installment payments, exclusion of evidence as to judgment entered thereon, defendants brought this appeal. [1] Prior to the execution of each lease, the parties had entered into a written contract called a "sales proposal," being a proposition by plaintiff to furnish and deliver the truck to defendants, on terms of payment, etc., similar to those later embodied in the lease. These proposals were accepted by defendants, and were in form contracts of sale, but were superseded by the bailment leases, under which the trucks were delivered to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the defendants. While the sales proposals | evidence relating thereto, as he also did remained executory it was competent for the that tending to prove the damages defendants parties to change them to bailment leases, sustained by loss of the trucks; for the exand, having done so, the latter became the tent of damages is immaterial where none actual final agreements. are recoverable. "The fact that the original intention of the parties was to make a sale, and that such was the legal effect of their first agreement, does not prevent a change while it is still executory into a bailment with an alternative of future conversion into a sale on compliance with stipulated conditions." Goss Printing Co. v. Jordan, 171 Pa. 474, 32 Atl. 1031; Stiles v. Seaton, 200 Pa. 114, 118, 49 Atl. 774. [2] No fraud, accident, or mistake is averred; hence, the admission of the sale proposals in evidence would not have changed the legal effect of the transactions, and their exclusion by the trial judge, whether right or wrong, did defendants no harm. [3] It is unnecessary for a bailment lease to stipulate for a return of the property, and the absence of a provision to that effect in those here in question is not confect in those here in question is not controlling. Stiles v. Seaton, supra; Edward's Appeal, 105 Pa. 103; Jones v. Wands et al., 1 Pa. Super. Ct. 269; Porter v. Duncan, 23 Pa. Super. Ct. 58. [4] Installments long overdue were unpaid when the writ of replevin issued, but by mere indulgence plaintiff did not lose its right to reclaim the property in accordance with the terms of the contracts. There had been no modification of the leases nor any waiver of plaintiff's rights; on the contrary, 28 days before the writ issued the use plaintiff wrote defendants stating, inter alia: "We will be obliged to repossess these trucks unless the past-due [paper] is taken care of in the near future." This is inconsistent with the claim of a waiver, being in effect a demand for the trucks unless the defaults were promptly made good, which they were not. The leases authorized plaintiff upon demand to forthwith take possession of the trucks, but defendants had practically a month's written notice, in addition to verbal notices as shown by the uncontradicted evidence. Such no tice, whether oral or written, need be in no set form of words (1 Cyc. 696), and, as we regard the written notice sufficient, it is unnecessary to determine whether a demand must precede the suit. As defendants made no offer or effort to make good the defaults. either before or after the issuing of the writ, there is no merit in their claim of lack of demand, and nothing which required a submission of that question to the jury. [5, Under the correct ruling of the court below, plaintiff rightfully repossessed itself of the trucks; hence the question as to who would ultimately have been their owner, had defendants made no default, was irrelevant, and the trial judge properly excluded parol The assignments of error are all overruled, and the judgment is affirmed. (272 Pa. 231) BROWN v. AMERICAN STEEL FOUNDRIES. (Supreme Court of Pennsylvania. Jan. 3, 1922.) 1. Negligence 67-Risk of owner's fault not assumed by independent contractor's workman. An independent contractor's employee who was engaged in punching holes in roof of a foundry in which a traveling crane was operated, and who reached the scaffold on which he worked by climbing on the runway, did not assume the unusual risk that the operator of foundry would neglect reasonable precaution to safeguard him while going to and from work. 2. Negligence 136 (27)-Contributory negligence of independent contractor's employee in failing to observe approaching crane held for jury. An independent contractor's employee who slipped from the runway in his effort to avoid crane while he was climbing to a scaffold on which he was working held not negligent as a matter of law in failing to see crane in time. 3. Negligence 32(1)-Independent contractor's employee entitled to reasonably safe place. It was the duty of the proprietor of foundry to give employee of independent contractor engaged in rebuilding a part of the foundry a reasonably safe place to work consistent with the circumstances. 4. Negligence 124 (3)-Evidence of customary precautions held inadmissible. In an action against the proprietor of a foundry for injuries to an independent contractor's workman by negligent operation of crane, evidence as to custom of taking precautions in other foundries held inadmissible, in absence of a showing that the working conditions in other foundries were similar to those in defendant's foundry. (116 A.) The third, fourth, fifth, and sixth assign- | overruled and bill sealed for defendant. ments of error referred to in opinion follow: [Seal.]) (3) The court below erred in overruling the defendant's objection to the admission of certain evidence, which evidence, together with the objection thereto and the ruling thereon, are as follows: "Q. What was the usual and ordinary custom with reference to cranes, similar cranes to the one that hurt you; as to whether or not they had a gong or bell on it? (Objected to as incompetent, irrelevant, and immaterial. Objection overruled and bill sealed for defendant. [Seal.]) "A. There was lots of places where they have those cranes and men working on the cranes, and they have a man rides the crane. (Objected to, and counsel for defendant asks that that be stricken out as not responsive.) "By the Court: We will strike it out. "By Mr. Marshall: Q. What is the custom about a gong? A. It is what they call a safety gong up and down the shop, and the operator, the man that operates this crane, rings this "Q. Is there anything that is ordinarily done where men are working along a crane to protect the man? A. Yes, sir; a man put on the bridge of the crane to ride it and watch, a man going backwards and forwards, up on the rails to prevent the crane going within a certain distance of where you are. "Q. He would be a lookout? A. Yes, sir. "Q. Was there any lookout used on these cranes. A. None that I seen." (4) The court below erred in overruling the defendant's objection to the admission of cer ́tain evidence, which evidence, together with the objection thereto and the ruling thereon, are as follows: "Q. What was the usual custom as to whether or not those cranes were equipped with gongs? A. They all had them. (Objected to as incompetent, irrelevant, and immaterial. Objection overruled, and bill sealed for defendant. [Seal.]) 99 (5) The court below erred in overruling the defendant's objection to its admission of certain evidence, which objection with the ruling thereon are as follows: "Q. Say yes or no? A. Yes, sir. "Q. What do you mean? A. You can place a man to look out and watch out; you can put an extra crane stop on. "By the Court: Not what they can do? A. They generally do. "By Mr. Marshall: Q. Put a man on to watch out? A. Put a man on to watch out, or put an extra stop on and not allow the crane to pass that given point. "Q. Did they do either of those things on this job? A. No, sir." (6) The court below erred in overruling the defendant's objection to the admission of certain evidence, which evidence, together with the objection thereto and the ruling thereon, are as follows: "Q. I ask you what was the general custom about having gongs on the cranes? (Objected to. Objection overruled, and bill sealed for defendant. [Seal.]) A. They generally have a gong on the crane." Argued before MOSCHZISKER, C. J., and WALLING, KEPHART, SADLER, and SCHAFFER, JJ. John G. Frazer, W. L. G. Gibson, and Reed, Smith, Shaw & Beal, all of Pittsburgh, for appellant. Meredith R. Marshall and Rody P. Marshall, both of Pittsburgh, for appellee. KEPHART, J. [1] Appellee was employed by an independent contractor in connection with the work of rebuilding and strengthening a part of appellant's foundry. A traveling crane operated in the building, in a space 700 feet long, 50 feet wide, and 20 feet high; its wheels ran on ordinary rails, similar to those used on steam roads, resting on steel girders 3 feet 6 inches high. Supporting the girders were steel colums 26 feet apart, and immediately under and between them were lattice-struts of steel to strengthen and stiffen the runway. Immediately adjoining one of these columns, outside the runway and 75 feet from one end, was a column supporting the roof of the building. Appellee was punching holes in the roof column a few feet above and outside the runway, on a small platform or hanging scaffold. The only way to reach the place of work, as he stated, was to climb to the runway, swing around the "Q. Is there any other precaution outside of a bell or gong that is usually taken with cranes when men are working on a crane track? (Ob-roof column to the scaffold outside, and clear jected to.) "By the Court: That is indefinite; I suppose it is necessary to show what is generally used. "By Mr. Frazer: This is objected to as leading, incompetent, irrelevant, and immaterial, and for the further reason that there is no allegation in the statement as to any negligence, except the one as to the gong. of the runway. He had been at work five or six weeks and was well acquainted with the character of the duties. He knew cranes were in continous operation while the rebuilding was going on, and that a moving crane was a dangerous piece of machinery. Defendant likewise knew plaintiff was work"By the Court: Is that true, Mr. Marshall? ing at this particular place, what his duties "By Mr. Marshall: It says 'operating said consisted of, and that he would occasionally crane in a reckless and improper manner.' I be called from his work above to the floor want to prove that it is the custom to put a beneath. While plaintiff assumed the usual man on the crane as a lookout. (Objection risks of his employment, he did not assume |