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Smalich v. Westfall - 440 Pa. 409, 269 A.2d 476 (1970)


A driver's negligence will not be imputed to a passenger, unless the relationship between them is such that the passenger would be vicariously liable as a defendant for the driver's negligent acts. The relationship between the passenger and the driver is therefore a very critical one, worthy of careful analysis and consideration. At least three relationships could exist between an owner-passenger and a driver of an automobile: (1) bailor-bailee; (2) principal-agent; and (3) master-servant.


Two automobiles collided. One of the vehicles, owned by Julia Smalich, was operated by Felix Rush Westfall. Julia Smalich and her minor son, Michael, were passengers in this automobile at the time. The other vehicle involved was operated by Stephanna Louise Blank. Julia Smalich suffered injuries in the collision that caused her death. Smalich's son, Michael,was injured but recovered. Marco Smalich, Michael's guardian, filed suit in trespass, claiming damages on Michael's behalf, naming both Westfall and Blank as defendants. The estate of Julia Smalich sought damages in both a wrongful death action and a survival action. At trial, the jury awarded $1025 in the wrongful death action; $200 in the survival action;$166.50 in the guardian's action; and $20,000 in Michael's action. Upon defendants' post-trial motions, the trial court granted defendant Blank a judgment notwithstanding the verdict in the actions on behalf of the Smalich Estate and a new trial in the actions on behalf of the minor and the guardian. The plaintiffs appealed.


Does the presence of the owner in automobile driven negligently by another impute negligence of driver to owner?




Court vacated decision as to Smalich’s wife's estate. Court overruled part of Beam v. Pittsburgh Railways Co., 366 Pa. 360, 77 A. 2d. 634 (1951), which held where an owner of a car is present while its being negligently operated by another there is a presumption owner has ability to control actions of driver and therefore any contributory negligence of driver is imputed to owner. Court stated that the only way an owner of an automobile could have the driver's negligence imputed to the owner would be the existence of a master-servant relationship between owner and driver.

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