# Automobile Securities Co. v. Scungio

> Superior Court of Pennsylvania · April 27, 1923 · 81 Pa. Super. 362

URL: https://www.frixlaw.com/law-library/cases/3863183

## Case

- **Full name:** Automobile Securities Co. v. Scungio; Automobile Securities Co., Inc., Appellant, v. Scungio
- **Court:** Superior Court of Pennsylvania
- **Decided:** April 27, 1923
- **Citations:** 81 Pa. Super. 362; 1923 Pa. Super. LEXIS 84
- **Precedential status:** Published
- **Opinion:** Dissent by Gawthrop
- **Judges:** Porter, Henderson, Trexler, Keller, Linn, Gawthrop
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Dissenting Opinion by
Gawthrop, J.
I am unable to concur in the conclusion of the majority that the court below was justified in directing a verdict for the defendant. The fourth section of the Act of April 19, 1901, P. L. 89, requires plaintiff to file a declaration which shall consist of a concise statement of his demand, “setting forth the facts upon which his title to the goods and chattels is based.” The declaration avers title in plaintiff by purchase from the Automobile Storage & Sales Company and the unlawful detention of the car by Scungio — defendant. Plaintiff proved its title
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by offering in evidence a bill of sale from the Automobile Storage & Sales Company to it. It proved by the witness, Souder, delivery of the possession of the car to it by the Automobile Storage & Sales Company. When this testimony was introduced, plaintiff was entitled, without more, to a verdict. Judge Henderson, speaking for this court, said in Drumgoole v. Lyle, 30 Pa. Superior Ct., 163: “the statute requires that the declaration shall consist of a concise statement of the plaintiff’s demand, setting forth the facts on which his title to the goods and chattels is based......Possession usually follows title, and an affirmation of absolute ownership or a qualified property with the circumstances of such qualified proprietorship would ordinarily be sufficient to present a prima facie case in favor of the plaintiff. If the plaintiff’s title be clearly and fully set forth with an averment of wrongful dispossession the defendant must meet' this prima facie showing by setting forth in his affidavit of defense facts sufficient to justify his retention of the property.” When the intervening defendant, in its affidavit of defense, asserted a right of possession because of a lien for storage-and repairs incurred by Scungio, plaintiff replied to this with an allegation, in its replication, that Scungio was merely a lessee of the car. Plaintiff was not required to anticipate this defense and meet it in its declaration: Heisley v. Mfg. Co., 33 Pa. Superior Ct., 218. It follows that plaintiff’s failure properly to prove the lease from it to Scungio did not relieve the defendant of answering plaintiff’s proof of title. When plaintiff proved its title under the bill of sale, “the burden of proving that it was nevertheless not entitled to absolute and unqualified possession by reason of a lien acquired by the defendant (for storage and repairs) was cast on the latter:” Pickering Co. v. Friedman R. Co., 57 Pa. Superior Ct., 553; although one who has made repairs to an automobile, at the request of another who has possession thereof under a bailment lease, does not have a lien on the automobile for his services, against the real
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owner, and the latter is entitled to repossess himself of his property in an action of replevin: Bankers Commercial Security Co., Inc. v. Brennan and Levy, 75 Pa. Superior Ct., 199. But the defendant offered no evidence and merely presented a point for binding instructions. As the case then stood plaintiff, rather than defendant, was entitled to a verdict. Plaintiff’s case did not fall because of the proper exclusion of evidence offered to show that it had leased the car to Scungio. It was manifest error to affirm defendant’s point for binding instructions.
For these reasons, I would sustain the second assignment of error and order a new trial.
Judge Keller authorizes us to state that he joins in this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3863183. Public record. Not legal advice.