Coleman v. Clements Chevrolet Company
| Decision Date | 13 April 1928 |
| Docket Number | 26,593 |
| Parties | NELL COLEMAN v. CLEMENTS CHEVROLET COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for Olmsted county to recover damages for personal injuries sustained through defendant's negligence. There was a verdict for the plaintiff, and defendant appealed from an order, Gates, J. denying its alternative motion for judgment or a new trial. Affirmed.
Questions of negligence and liability of master for servant's acts were for jury.
1. In this an automobile accident the issues of defendant's responsibility for the acts of the driver, the latter's negligence, and plaintiff's contributory negligence were for the jury.
Even if charge were inapplicable, new trial should not be had if jury believed plaintiff.
2. If the jury accepted plaintiff's version that her car was to be tried out by defendant after the repairs were made, it so clearly appears that the driver was within the scope of his employment when the injury to plaintiff occurred that even were the charge as to apparent authority inapplicable it should not result in a new trial.
Appeal and Error, 4 C.J. p. 1033 n. 37.
George J. Allen and L. K. Eaton, for appellant.
Christensen & Ronken, for respondent.
Appeal from an order denying defendant's motion for judgment non obstante or a new trial.
Plaintiff owned a Chevrolet coach. Defendant sells that make of cars at Rochester in this state, and in connection with his place of business maintains a repair shop. Plaintiff had left her car there to be painted and overhauled and new tires put on. Just previous thereto, Losacker, one of defendant's salesmen had demonstrated a new model to her with a view to a trade for her car. When she decided not to do so, she made the agreement with Losacker and the shop foreman for the repairs. She claimed that part of the agreement was that after the work was done the car was to be tested out. She came to the garage the day the car was promised to be ready, but had to wait until they finished putting on the tires. Losacker waited on her, brought the car down from the shop, and presented her with the bill for the repairs, but she reminded him of the agreement to test the car before paying the bill. He told her to come along, and she followed across the street where he had parked the car. He took the driver's seat and bade her enter. As they started she tried to shut the door. It failed to shut. She slammed it three different times without the lock's catching, meantime calling Losacker's attention thereto, who, when he had gone about 150 feet to a cross street, turned abruptly to come back. The momentum of the car in turning threw her out through the unshut door, fracturing her arm. The charge in the complaint was that the car was driven negligently at a high and dangerous speed while making the turn, thereby causing her injury. Defendant denied that Losacker was in the course of his employment, and alleged that her injury was the result of her own negligence.
Defendant asks for judgment notwithstanding on three grounds: Losacker was not negligent; even if negligent, defendant was not responsible, since in driving the car he departed from his employment as servant of defendant and became in fact the servant of plaintiff; and plaintiff was negligent as a matter of law. We deem all three propositions jury issues. The jury could well find that defendant's agreement with plaintiff was that the car should be tested out before it should be accepted and the repairs paid for, and that a salesman, who was authorized to demonstrate cars to customers and on the day in question was...
To continue reading
Request your trial