Rosenstein v. Bernhard & Turner Auto. Co.

Decision Date21 December 1920
Docket NumberNo. 33242.,33242.
Citation180 N.W. 282,192 Iowa 405
CourtIowa Supreme Court
PartiesROSENSTEIN v. BERNHARD & TURNER AUTOMOBILE CO.

OPINION TEXT STARTS HERE

Appeal from Municipal Court of Des Moines; T. L. Sellers, Judge.

Action to recover damages resulting from a collision between an automobile driven by an employee of the plaintiff and an automobile driven by an alleged employee of the defendant. Defendant appeals from a verdict and judgment against it. Affirmed on condition.Brockett, Strauss & Blake, of Des Moines, for appellant.

H. L. Bump, of Des Moines, for appellee.

ARTHUR, J.

This is a very voluminous record for a small case.

The collision and consequent accident occurred at the intersection of Sixth avenue and Chestnut streets in the city of Des Moines, at about 2 o'clock in the morning of the 9th day of April, 1918. Defendant was engaged in operating a general repair and storage garage in the city of Des Moines, and one C. E. Booth was an employee of defendant. On the night of the accident, Booth was engaged as a night floorman, whose duty it was to make slight adjustments of cars, change tires, and do any general work which could be done on the floor of the garage. Morden and Kellogg, residents of Minneapolis, Minn., drove into defendant's garage in the evening before the accident, after Booth had gone to work and the shop proper on the second floor of the garage had been closed for the day. Morden and Kellogg were driving a Packard Twin-Six automobile, and asked Booth, who approached them to wait upon them, if he could adjust the carburetor and drain the gasoline line and have the car ready to go out early the next morning, as they expected to drive from Des Moines to Minneapolis and wanted to start early. Booth undertook the job and performed the service of what they call “dinging” the carburetor and drained out the gasoline, after making some adjustments. Then Booth took the car out on the street about 11 o'clock to test out the carburetor and see if he had it properly adjusted; as Booth put it, “to see whether or not it would work on a pull.” The adjustment made was quite satisfactory to him, and he brought the car back to the garage and made some further adjustments. Again, about 2 o'clock in the morning, Booth took the car out and drove it up Seventh street and over to Sixth avenue, and down Sixth avenue to Chestnut street, where the collision occurred. Dick Martin, the driver of plaintiff's car, was driving a Ford taxicab east on Chestnut street with three passengers, Lieut. Wm. H. Kober, Lieut. Baker, Serg. Levenick, and arrived at the intersection of Chestnut street and Sixth avenue, where he collided with the car driven by Booth. In the collision the taxicab was damaged to some extent. Later, about 6 o'clock in the morning, the taxicab was removed to defendant's garage. Later, in a day or two, the injured taxicab was taken to the Herring Motor Company, where it was repaired and painted.

This action is brought for injury to the taxicab, and for loss of use of the car during the time it was being repaired.

The plaintiff alleges: That defendant was negligent in that its employee was driving a heavy car at an excessive rate of speed, and in not taking proper precaution and care at the intersection of streets where the collision occurred, and that plaintiff was not guilty of contributory negligence. Plaintiff claimed damages for injury to his car in the amount of $127.50, and set out the items, and claimed damages for loss of the use of the car in the amount of $300, $10 a day for 30 days.

The jury returned a verdict for the plaintiff in the amount of $399.50, and judgment was entered for that amount, from which defendant appeals.

This is a typical automobile collision case in most respects. It has the feature of the liability of the master for the negligent acts of his employee which does not so often occur.

It is conceded that Martin, the driver of of plaintiff's car, was an employee of the plaintiff, and was acting within the scope of his employment. It is also conceded that Booth, who was driving the Packard car, was an employee of the defendant. But whether Booth was acting within the scope of his employment at the time of the collision so that his negligence, if he was negligent, is chargeable to the defendant, was an issue in the case, and is, logically, the first question to examine; for if defendant is liable for the negligence of Booth, if he was negligent, because though an employee he was without the scope of his employment in taking the car out of the garage onto the street to drive it for any purpose, that would end the case. Defendant assigns as error the submission of this issue to the jury.

[1] Defendant insists that the evidence shows as a matter of law that Booth was not acting within the scope of his employment at the time of the accident. We have examined the evidence carefully bearing on that question, and conclude that it was an issue of fact to go to the jury. The evidence did not warrant the court in holding that, as a matter of law, Booth was not acting within the scope of his employment. It would serve no good purpose to set out the evidence here.

Defendant introduced testimony to establish that they had especially instructed Booth not to take automobiles out of the garage, and they further insist that it was not within the scope of Booth's employment to make such repairs or adjustments as the Packard car required. Defendant introduced evidence to establish that, in taking the car out of the garage, Booth was acting contrary to positive instructions of his employer not to do so, and that therefore the defendant is not liable.

Counsel for defendant argues that the undisputed evidence shows that Booth was charged with no duty and given no authority by defendant to test carburetors; that if Booth had had authority from his employer to test carburetors, and do the work...

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