Kerns v. Lewis

• Decision Date: 03 December 1929
• Docket Number: No. 61.,61.
• Citation: 227 N.W. 727,249 Mich. 27
• Parties: KERNS v. LEWIS.
• Court: Michigan Supreme Court

249 Mich. 27

227 N.W. 727

KERNS

v.LEWIS.

No. 61.

Supreme Court of Michigan.

Dec. 3, 1929.

Error to Circuit Court, Saginaw County; William H. Martin, Judge.

Action by William E. Kerns against Morgan F. Lewis, doing business under the assumed name of the Nash-Lewis Motor Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Argued before the Entire Bench, except NORTH, C. J.Bishop & Weaver, of Detroit, for appellant.

O'Keefe & O'Keefe, of Saginaw, for appellee.

FEAD, J.

This is an action for damages arising out of an automobile collision which resulted in the death of Gertrude Kerns. It is a companion case to Kerns v. Lewis, 246 Mich. 423, 224 N. W. 647, where the facts are stated. Plaintiff sued for loss of services of his wife and expense in caring for her.

At the time of the accident, defendant's car was driven by Walter Pentkowski, brother of John. It had been loaned to John by George Clinton, an employee of defendant. The important question is whether Clinton had authority to loan the car, so that, when the accident occurred, it was being driven with defendant's ‘implied consent or knowledge,’ and he thereby made liable for the negligence of the driver under Act No. 56, Pub. Acts 1927, § 29. Kerns v. Lewis, supra.

Defendant operated a Nash car sales business, with wholesale and new and used car retail departments and service for cars that had been sold. Early in 1926 Clinton became retail sales manager, with power to hire salesmen, in full charge of his department in defendant's absence, and without specific instructions as to his conduct of the business. About June 30, John Pentkowski purchased of defendant, through Clinton and his salesmen, a new Nash sedan, upon which he applied his used car as part payment and agreed to pay the balance in installments. The new car developed considerable engine trouble, and was brought back to the garage at least twice for repair.

On August 25 Pentkowski brought it in, it could not be repaired until the next day, and he asked Clinton to loan him a car. Clinton loaned him the Nash coach, which had been taken in trade and was kept for sale. He testified, ‘There was one standing there that I knew he could take.’ Neither counsel asked him to explain the statement, but it may be taken as an indication that Clinton was acting in good faith in what he did. Defendant was away at the time of the loan, and did not know of it until after the accident. He had said nothing to Clinton about loaning cars, either by way of permission or prohibition. Once before defendant himself had loaned a car to a customer while his was being repaired. It did not appear that any other occasion arose for loaning a car, nor that any one ever was refused.

Defendant denied that Clinton had authority to loan the car. Clinton said defendant never had given him express authority to loan a car. Clinton, however, testified generally that all dealers have courtesy or emergency cars to loan to customers while their cars are being repaired. While this statement was not strictly evidence of a local custom, no objection was made to it, and it was evidence for the jury to consider. Defendant, however, had no courtesy or emergency car devoted to such purpose.

When defendant put Clinton in charge of the retail sales department, without specific instructions, he invested him with implied authority ‘to do all things which are reasonably necessary or proper to efficiently carry into effect the power conferred, unless it be a thing specifically forbidden.’ Emery v. Ford, 234 Mich. 11, 207 N. W. 856.

As Clinton was manager, his implied authority necessarily included the right and duty to use his judgment and discretion in furtherance of the business of his department. It is a fair inference that the authority applied not only to the...