Reynolds v. Buck

103 N.W. 946, 127 Iowa 601

• Court: Supreme Court of Iowa
• Decided: June 10, 1905
• Status: Published

Opinion

Shebwik, C. J.

At the time of the accident causing the plaintiff’s injuries the defendant was a dealer in agricultural implements, buggies, automobiles, etc., in the city of Davenport, and his son Emil I. Buck was in his employ as a clerk. There was an automobile parade in the city of Davenpprt in the afternoon of the day in question, and, on the solicitation of the committee having the matter in charge, the defendant decorated an electric automobile belonging to him, and the machine, operated by one of his daughters, had a place in the parade. The son, Emil J., who had been employed in his father’s establishment for some time, was given a lay-off or holiday for the parade. He spent the forenoon of the day in decorating a steam automobile that he intended to use in the parade, and in the afternoon, during a part of the time that the parade was in progress, he and some of his friends used the steam machine on the streets. They then returned it to the defendant’s/place of business, and left it on the premises; and soon thereafter the son and his companions, young men and women, went to the river. In the meantime the parade was concluded, and the electric machine was returned to the defendant’s place of business Ey the' daughter, and left on the street, in front of the store. The defendant was present at the time, and directed an employe to take it in, and soon thereafter he left the store. A short time after the defendant had left the store, the son, Emil J., and a young lady friend returned thereto; and she, desiring to go home from there, accepted his invitation to ride home in the autoriiobile. He took her to her home by the nearest route, and on his way back to his father’s store the plaintiff’s horse became frightened at the machine, and the accident happened, resulting in the injury complained of.

Conceding, for the purposes of this appeal, that the son was negligently operating the machine at the time of the accident, was sucb negligence chargeable to tbe defendant, under tbe evidence? We are clearly of tbe opinion tbat it was not. Tbe direct evidence all shows tbat bis use of tbe electric automobile was solely for tbe pleasure and convenience of tbe young lady and himself, and tbat it was in no wa[y or sense connected with bis employment or with tbe defendant’s business. Tbe mere fact that tbe automobile still wore tbe decorations, and tbat it might on account thereof attract attention, and incidentally advertise tbe defendant’s business, would not have justified tbe jury in finding tbat tbe son was about bis father’s business at tbe time. An inference so farfetched should not be permitted to control and destroy direct and positive testimony to tbe contrary. Meyer v. Houck, 85 Iowa, 319. Tbe son bad been given a holiday and was master of bis own time on tbat day. This is conclusively shown. Tbe defendant bad ordered tbe machine put away, and did not know that bis son wished or intended to use it. It was taken and used for tbe son’s own pleasure, and we think the verdict was very properly directed for defendant.— Affirmed.