Gazdik v. Gates Body Co.

Per Curiam. The plaintiffs offered evidence that they were injured in a collision between a motorcycle upon which they were riding and an automobile truck driven by one Michael Kish, Jr., and that the accident was due to the negligence of Kish in the operation of the truck. The defendants are Michael J. Riordan, The Gates Body Company, and Michael Kish, Sr., the claim of the plaintiffs being that Kish, Jr., was at the time of the accident operating the car as the agent of some or all of them. The only facts bearing upon the issue of agency which the evidence even remotely suggests are these: Riordan bought the truck of an automobile dealer under an agreement that the dealer would have it equipped with a certain type of body, *173 and the price paid was a single sum for the completed track. Riordan, being in immediate need of it, used it for a few days, and then, as directed by the dealer, delivered it to the Gates Company to have it equipped with the body. The contract for the construction of the body by the Gates Company was one between it and the dealer from whom Riordan bought the truck. The Gates Company, being pressed with work, took the truck to the blacksmith shop operated by Kish, Sr., to have the necessary irons put in place. The representative of the company, Reall, who delivered- the truck at the shop, told Kish, Sr., that they were in a hurry for it and that he would come for it in the morning. Kish, Sr., his son, and another man worked late on the car, and in the course of the evening the son said to his father that he would deliver the truck to the Gates Company in the morning, but the father told him not to do so, that Reall was coming for it. Nevertheless, the son arose the next day before his father, took out the truck without his knowledge, and was driving it to the place of business of the Gates Company when the accident occurred. The son had never delivered any trucks from his father’s shop to the Gates Company, or in fact driven any trucks except from the street into the shop or from the shop into the street, nor did it appear that he had ever delivered any articles for his father except by the use of a horse and wagon. The reason he gives for taking the truck was that it was a new one and he wanted to drive it. Obviously, regarding these facts in the light most favorable to the plaintiffs and drawing every reasonable inference in support of their claim, they fall far short of affording any basis for a finding by the jury that the son was the agent for any purpose of any of the defendants save Kish, Sr., or that he was, in operating the truck at the time of the accident, then *174 engaged in the course of his employment by the last named. There is no error.