This begins by telling us that authority in a servant to transfer to another the custody of an instrumentality entrusted to him may be found in "an emergency, as where he became disabled," a statement sufficient to cover this case. However, the next sentence proceeds to qualify this by saying that liability of the master (save for negligent choice by the servant) depends on whether the servant is authorized to employ the substitute as a new servant or simply to entrust the instrumentality to him as a bailee — a distinction rejected, as the Reporter's Notes recognize, pp. 381-2, by about as many states as accept it. See, e.g., Emison v. Wylam Ice Cream Co., 215 Ala. 504, 111 So. 216 (1927); Farrell v. Pinson Transfer Co., Ky., 293 S.W.2d 170 (1956). The distinction appears to be a residuum left by the maxim delegatus non potest delegare, which, however appropriate to the chariot, does not always achieve a just result when applied to the automobile.
This man and Sergent were both in the courtroom during the trial but were not called as witnesses. Plaintiffs rely on the case of Farrell v. Pinson Transfer Co., Ky., 293 S.W.2d 170. In that case we held that where an employee is in the employer's truck, even though it is being driven by a third party, the presumption arises that the vehicle was being used in the course of the owner's business.
The other illustrative case is that if Litton had dropped the case of bottles on the foot of a customer of the store into which he was carrying it, the company would be liable for his negligence. Farrell v. Pinson Transfer Co., Ky., 293 S.W.2d 170, is cited in support. We regard the analogies as apt.