Harts v. Raney Chevrolet Co.

Beo&den, J. Is an automobile dealer liable in damages for the conduct of a prospective purchaser, who, while driving the car in order to show it to his wife, negligently injures a third person ? At the outset of the inquiry, it is to be observed that there is no evidence that Benton, the prospective purchaser, was an incompetent or careless driver, or that the automobile was defective in any particular; neither does it appear that he was contemplating the purchase of a car for his wife, nor that her approval was an essential element of the sale. Moreover it appears that no agent or employee of defendant, Chevrolet Company, was present in the car or exercising any direction or control thereof or of the driver. The question has not been directly presented to this Court, but there is intimation in Holton v. Indemnity Co., 196 N. C., 348, 145 S. E., 619, that a prospective purchaser, while driving the. car of an automobile dealer for demonstration purposes, is a bailee and not an agent of the owner. The intimation so given is abundantly supported by the decisions-in other jurisdictions. For example, the Illinois Court in Mosby v. Kimball, 178 N. E., 66, said: “Defendant in error, has called our attention to no case, and we have been able to find none, in which the owner- of an automobile has been held liable for the negligence of a prospective purchaser of the automobile or his representative when driving the car to find out how it runs, when not accompanied by the owner or his employee. On the other hand, it has been held in a number of cases that there is no liability on the part of the owner of an automobile for the negligence of the prospective purchaser or his representative under such circumstances.” The Texas Court of Civil Appeals considered the question in Bertrand v. Mutual Motor Co., 38 S. E. (2d), 417. The Court said: “A prospective purchaser cannot be the agent of the seller to demonstrate a car himself.” The opinion quotes with approval the following principle from the Restatement of the Law of Agency by the American 'Law Institute : “The relation of agency is the consensual relation existing between two persons by virtue of which, one of them is to act for and in behalf *809 of tbe other and subject to bis control.” The Iowa Court in Goodrich v. Musgrave Fence & Auto Co., 135 N. W., 58, held that “a person in possession of an automobile under an agreement to purchase, not subject to the seller’s directions as to the use of the car, is not the seller’s agent, although there is an agreement that he is to have a commission on sales made by him.” Other cases directly in point are Cruse-Crawford Mfg. Co. v. Rucker, 123 Southern, 897; Flaherty v. Helfont, 122 Atl., 180; Marshall v. Fenton, 142 Atl., 403. See, also, Magee v. Hargrove Motor Co., 296 Pacific, 774. The application of these principles to the facts leads to the conclusion that the ruling of the trial judge was correct. Affirmed.