RAGLAND, J.
Plaintiff, who was driving along a public highway near Kansas City in an automobile, suffered injuries to his person and to his car through a collision with another automobile which was proceeding along the highway in an opposite direction and which was owned by defendant but driven and operated by one Johnson. The collision resulted from Johnson's negligence. This action is to recover the damages sustained by plaintiff. Defendant was not in charge of his automobile in person; he was not even present. If he is liable for plaintiff's injuries, it is because Johnson was at the time of the occurrence acting in the capacity of agent or servant of the defendant. Whether he was or not is the sole question in the case. For a solution of that question the evidence must be looked to.
At the times hereinafter referred to, defendant was engaged in "the mill business," manufacturing doors and sashes; Johnson was an automobile mechanic, not regularly employed as such, nor owning a business of his own, but doing "odd sobs" here and there as occasion offered. " He was never at any time in defendant's general employ for any purpose. In the early part of 1922, defendant had a five-passenger touring car which he had been using for a number of years and which he desired to have "overhauled" and put "in good running condition." This work Johnson contracted to do, and did do, for the lump sum of $100. The work of putting the car in repair was done on defendant's premises and was completed and paid for about the middle of April, 1922. During the time that Johnson was working on the car he learned from defendant that the latter was willing to sell the car when the repairs were completed, and that he would sell it for $750. Thereafter Johnson, apparently on his own initiative and without suggestion of any kind on the part of defendant, showed the car to a number of persons with the view of interesting them in its purchase. But the car was never taken out for a demonstration until May 7, 1922. On that day, Johnson, while driving the car to the place where he was to demonstrate it to a prospective buyer, collided with plaintiff's car causing the injuries complained of. Now, a finding that Johnson on that occasion took the car out for demonstration as the agent or servant of defendant must rest solely on the testimony of Johnson, who was called as a witness by plaintiff, for plaintiff offered no other evidence on that issue, and the defendant's evidence gives him no aid. A part of Johnson's testimony has been summarized; the remainder, so far as relevant to the question under consideration, is as follows:
Direct examination:
"Q. How did you happen to meet him (defendant) on that day (May 7, 1922) ? A. Well; I met him at his office, and talked about selling the car. He had a car he wanted to sell; a used car; a Mercer car. * * * And he told me if I had a buyer for it to go out and demonstrate it. * * * I asked him if I could take the car out to demonstrate it, about 3:30 or 4 o'clock, May 7th. * * *
"Q. Go, ahead, now, and describe about this day. You told him you had a purchaser for the car by the name of Mr. Jenkins? A. Well; I told him I had a purchaser for the car, by the name of Mr. Jenkins, and he told me to take the car. When I first seen him, it was in the office of the Federal Sash & Door Company. Well, the car wasn't in the garage of the Federal Sash & Door Company; it was up in Mr. Ross' Garage; that is a partner of Mr. Rhoads in the Federal Sash & Door Company, and I went up to Mr. Ross' house and got the car out of the garage and took this said car, the Mercer car, down to the Federal Sash & Door Company, in front of the Federal Sash & Door Company, and went in and asked Mr. Rhoads for some money for some gasoline, and which he gave me. * * *
"Q. Did he know to whom you were going to try to sell this car? A. No, sir.
"Q. Had you mentioned Mr. Jenkins' name to him? A. No, sir. * * *
"Q. Now, just what was said when he gave you the dollar to buy the gasoline with? A. Well; he told me—I told him I had a fellow I wanted to demonstrate the car to, and he gave me a dollar to buy some gasoline with, and he never told me any specified time when to demonstrate this car, because it was about 4 o'clock or a little after 4 when he gave me the money for the gasoline, and, following that, why, Mr. Herbert Jenkins, the fellow I was going to demonstrate it to, he was going to come by my house that night.
"Q. Where did you live? A. 3236 Morrell avenue.
"Q. And that was the place he (Jenkins) was to come by? A. Yes, sir; and which he come by, and he stopped and told me he hadn't time to look at the car, but to bring the car out and show him the car, and—
"Q. (interrupting): Now, where did he tell you to bring the car to show it to him? A. I was going out to the Ross farm—Colonel Ross farm, a farm owned by Mr. Colonel Ross—and it is just about a half a mile south of where the accident occurred.
"Q. Well; did Mr. Jenkins say anything about seeing you out there in the country in the morning? A. Yes, sir; I told him we had arranged before that time; I was going out there that night anyway, and so I told him I would bring the car out and show him the car.
"Q. And he wanted a demonstration out there; he wanted you to bring it out there to where he lived in the country to demonstrate it out there to him? A. Yes, sir. Well; he just told me to come out there. I was coming out there that way anyway, and I was going out that night, and he told me to bring it out and he would look over it, and if it was worth the money he would buy the car."
Cross-examination:
"Q. Now, then, after you finished that work on the car, and between that time and the time, on May 7th, did you have the car out? A. Well, I had it out one or two times, to test; that is, to adjust the carburetor and the bearings on the car.
"Q. That was to make the car work, in accordance with the arrangement you had made with Mr. Rhoads, when you started to work on it, is that it? A. Yes, sir.
"Q. You were simply making good under that $100 contract? A. Yes, sir; I was.
"Q. During those times, when you took the car out to see if the carburetor was working right, did you endeavor to demonstrate the car for sale purposes? A. Well; one time; yes, sir. It was Mr. Ross, Roland Ross, I demonstrated it to him, and let him look over the car and see what he thought of the car.
"Q. Where was it he looked over it what place? A. He looked over it in front of my place, 3236 Morrell avenue.
"Q. Did you go out and ride with him? A. No, sir.
"Q. Was there anybody else to whom you demonstrated the car between the time you had done this work on the car, and the time of this collision? A. Not that I know' of—not to demonstrate. I know there was a lot of people I showed the car to, but I never did demonstrate it,
"Q. I see. Where did you show the car to them? A. Well; E had one party that looked at it at the Federal Sash & Door Company.
"Q. I see. Now, Mr. Rhoads made you a price on the car, did he? A. Yes, sir.
"Q. And that price was $750? A. Yes, sir.
"Q. You were to have anything over and above $750 you could get for the car? . Yes, sir.
"Q. You didn't have any agreement with Mr. Rhoads that he was to pay you any commission out of the $750? A. No.
"Q. Now, at the time you went to Mr. Rhoads, on this particular day, May 7th, you told him you had a prospect for the car? A. Yes, sir; I told him I had a prospect for the car and I wanted to demonstrate the car.
"Q. He had already told you the price of the car was $750 net to him, did he? A. Yes, sir; he said that is what he would take for it—$750.
"Q. And you didn't tell him, I believe you said, who the prospect was? A. No, sir. * * * a
"Q. Had you ever before demonstrated this car to anybody and driven your prospective purchaser around there in the car? A. No, sir. "Q. And on all of these occasions, all of these other occasions, when you say you demonstrated the car, you simply showed the car to the parties? A. Yes, sir; I showed it. * * *
"Q. So, at the time you saw Mr. Rhoads about this matter,...
