Opinion
No. 29,577.
October 13, 1933.
Automobile — garage keeper — liability for damage to car being repaired.
While a car was being repaired in defendant's garage, the owner requested that upon completion of the job it be taken out for a road test. During the operation the car was demolished by the negligence of the chauffeur, an employe of defendant. The request of the owner that the test be made did not take that employe out of the scope of his employment by defendant so as to relieve the latter of liability.
Action in the municipal court of Minneapolis, Hennepin county, by the insurer of one Rademacher, to whose rights plaintiff was subrogated through payment of assured's loss in the sum of $1,117.50, to recover of defendant, the negligence of whose servant is alleged to have caused the loss through damage to assured's auto. The case was tried before Paul S. Carroll, Judge, who found for plaintiff, fixing the amount of the damage at $400. From an order denying his motion for a new trial defendant appealed. Affirmed.
Wright, Lyons Wright and Schuyler Woodhull, for appellant.
K.A. Campbell, for respondent.
Plaintiff, as insurer, paid to one Rademacher, the owner, the loss for the accidental destruction of his automobile, and, as subrogee under the insurance policy, sued defendant, alleging that the negligence of the latter's servant caused the accident. The amount of the loss paid was $1,117.50. The case was tried below without a jury to a decision for plaintiff, which fixed the value of the car at, and so limited plaintiff's recovery to, $400. Defendant appeals from the order denying his motion for amended findings or a new trial.
The car was being repaired for Rademacher in defendant's garage. Something had gone wrong with the transmission. Before taking the car back, Rademacher requested Brooks, an employe in defendant's garage, to take it out for a road test. He did so, and, while driving on Superior boulevard on a slippery pavement, so managed, or failed to manage, the machine that it collided with a telephone pole, to the utter destruction of the car. The question of Brooks' negligence was, at least, one of fact, settled for plaintiff by the decision below.
Defendant was a bailee for hire. It was his duty to redeliver the car to Rademacher with the repairs made. A test is so frequently necessary to ascertain that such a job is properly finished, and so commonly made, that it would be bordering on the absurd to say that Rademacher's request for the test, as matter of law, transferred Brooks from defendant's employ to his own. That is the "main point" for defendant. There is nothing to it, because it was at least a question of fact, decided for plaintiff below, on evidence sufficient if not more. Repairs to an automobile are of no use unless they make the car run satisfactorily. The repairman, frequently, cannot know that his job is done unless he tests the car. Neither can the owner. The latter is entitled to have the work done to the satisfaction of the expert who does it, whose test of the result and whose favorable judgment thereof the owner ordinarily desires. Within common experience such things are within the coverage of the bill which he pays. So it is going too far to argue that, on such facts as we have here, the employe making the test, even upon the suggestion or at the request of the owner, is thereby and as matter of law made the servant of the latter. Doubtless, as aptly observed in the decision below, "even if Rade-macher had not asked for it [the test], it would have been done as a matter of course."
The case for plaintiff is well within Coleman v. Clements Chevrolet Co. 174 Minn. 277, 219 N.W. 92. This is no case of the loan by one employer to another of a servant, so that, for the time being, the lender ceases to be liable for the servant's negligence. Compare Conroy v. Murphy Transfer Co. 148 Minn. 14, 180 N.W. 704. Whatever the scope of so-called judicial knowledge of the fact issue, it would be startling to the common knowledge and understanding of the auto-driving public to be told that, after a major repair of an automobile, they could request an employe of the repairer to make an appropriate road test only at the risk of converting the one making the test into the owner's servant for the time being.
Order affirmed.