Opinion
April 27, 1938.
Present — Hill, P.J., Rhodes, Crapser, Bliss and Heffernan, JJ.
Respondent has recovered a judgment for personal injuries received when the automobile in which he was riding came into collision with an automobile belonging to appellant, occupied by two of its employees, both of whom were killed and one of whom was driving at the time of the accident. Appellant sells groceries through the activity of its agents who travel about in assigned areas procuring orders and thereafter delivering and making collections. An automobile delivery car is furnished each agent. Many, varied and involved are the rules governing the use by the agents of the assigned automobiles, but in the Binghamton area, where this collision occurred, appellant has no garage, but it pays one dollar and fifty cents a week towards the garage charge for each automobile. The agent to whom a car is assigned is required to attend to the washing and polishing (to be done by him or at his expense) and oiling and general lubrication (for which appellant allows seventy-five cents, the balance, if any, to be paid by the agent). The agent purchases gasoline, turning in receipts for reimbursement. All repairs up to five dollars are procured by the agent without direction from his superiors. During the week before the accident a flood of unusual magnitude had prevented the agents from covering their routes and making complete deliveries and collections during usual hours. Appellant's car, over which one of the occupants had control on the night in question, containing groceries, was proceeding along a highway within the area assigned to one of the occupants. The defense sought to negative the claim of, and the presumption in favor of, the respondent that the car was being used in respondent's business but failed to make it a matter of law in view of the broad powers granted to respondent's agents. The question was one of fact for the jury. Judgment unanimously affirmed, with costs.