Goodrich v. Musgrave Fence & Auto Co.

• Decision Date: 15 March 1912
• Citation: 135 N.W. 58,154 Iowa 637
• Parties: GOODRICH v. MUSGRAVE FENCE & AUTO CO.
• Court: Iowa Supreme Court

154 Iowa 637

135 N.W. 58

GOODRICH

v.MUSGRAVE FENCE & AUTO CO.

Supreme Court of Iowa.

March 15, 1912.

Appeal from District Court, Polk County; W. H. McHenry, Judge.

Action at law to recover damages for personal injury. There was a directed verdict and judgment for the defendant, and plaintiff appeals. Affirmed.H. L. Bump, for appellant.

Dunshee & Haines, for appellee.

WEAVER, J.

An automobile driven by one Crell and another driven by the plaintiff collided upon one of the streets of the city of Des Moines, with the result that plaintiff's car was broken and injured. The circumstances of the collision were sufficient to justify a finding that it was occasioned by the negligence of Crell, and without contributory negligence on plaintiff's part. This action is brought to recover damages from the Musgrave Fence & Auto Company on the theory and claim that at the time of said occurrence Crell was the agent or employé of the defendant in the operation of the car by which the injury was inflicted. The only witnesses having knowledge of the actual relations between these parties were Crell himself and Musgrave, the president of the defendant company.

[1] Crell's story is to the effect that he had had some talk with defendant about buying the car, but had not yet agreed to do so. He explains his possession by saying that several days before the accident he had some negotiation with Musgrave about selling cars for him upon an agreed rate of commission. Crell informed Musgrave he had found two prospective purchasers at Indianola, and was then told by him to take the car and go to Indianola, and see what he could do about securing these orders. After making the trip to Indianola on Thursday, Crell does not appear to have returned the car to Musgrave, but retained its possession until Sunday, when the collision occurred. He then had in the car a party of several persons whom he was driving about town for pleasure, though with the hope of securing one of them as a customer. So far as shown, no authority or direction had been given him by Musgrave to keep the car in his possession after the return from Indianola, and no request or suggestion that he take it out or use it on Sunday the day of the accident. Taking his own statement for it, we think it very clear that in using the car at the time in question he was neither the agent nor the servant of the defendant, and the latter was in no sense of the word responsible for the manner in which he used...