Opinion
Decided November 7, 1938.
Negligence — Automobile salesman directing third person to drive car — Not acting in scope of employment, when — Directed verdict for salesman's employer not error, when.
An automobile salesman, working on a commission basis, who, after selling a car, directs a third person to drive his, the salesman's car, back to the place of business of the salesman's employer, the defendant motor car company, while the salesman drives the purchaser's used car back, is not acting within the scope of his employment and it is not error for the trial court to direct a verdict in favor of the defendant motor car company in a suit for damages as a result of a collision between the car being driven by such third person and a car being driven by plaintiff.
APPEAL: Court of Appeals for Hamilton county.
Messrs. Bettinger, Schmitt Kreis, for appellant.
Messrs. Harmon, Colston, Goldsmith Hoadly and Mr. Henry B. Street, for appellee.
The action was for damages growing out of an automobile collision.
The defendant, The Universal Car Company, appellee here, was a dealer in Ford motor cars and had in its employ a salesman by the name of George Munday. Munday was given a list of prospects by the dealer, and called upon the persons listed in order to effect sales of Ford automobiles. He was in the employ of the company on a commission basis.
To carry on his work, Munday operated a Ford automobile which he purchased under a salesman's contract with the defendant car company. This salesman's contract for the purchase of a car required a down payment and subsequent payments. On the day of the accident, Munday visited a prospect, driving his car which he had purchased under the salesman's contract. He effected a sale by an exchange of cars, the company taking in a used car in down payment. When the sale was completed, a young man by the name of Gergen appeared at the place, which was a filling station, and Munday directed Gergen to drive his, Munday's, automobile back to his place of business, and Munday drove the used car which he had taken in in trade. Gergen, in driving Munday's automobile back, had a collision with the plaintiff's automobile, in which collision the plaintiff was seriously injured.
The plaintiff in the case seeks to hold the car company, defendant, under the master and servant rule.
Had the accident been caused by Munday by his own negligent driving, there might be some question as to the liability of his employer. There are circumstances which would indicate that in such case the accident might be the personal act of Munday, and not one in the course of his employment. Certainly, his engaging an irresponsible driver to drive his own car to defendant's place of business would not be an act in the course of employment, which the car company could reasonably anticipate.
The trial court was correct in instructing the verdict as it did, and its judgment is affirmed.
Judgment affirmed.
ROSS, P.J., and MATTHEWS, J., concur.