Mand v. Rose

LUCAS, J., pro tem.

Appealing from the judgment on a verdict for damages resulting from the negligence of a minor, Harry Rose, one of the defendants and the sole appellant herein, contends that the evidence is insufficient

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to support the verdict. Two arguments are advanced: First, that the said minor was not an employee of the appellant; and second, that if it be held he was an employee, he was not acting within the scope of his employment at the time of the injury complained of. Appellant has not urged the first point with any great degree of earnestness, and indeed there is little merit in it. The record shows that appellant was either the sole owner of the Valley Auction Company or a joint venturer therein with defendant J. Boust, who assumed the entire management of the enterprise and employed the said minor in furtherance of its general objects and business. In either event appellant would be liable for injuries resulting from the negligent acts of the employee committed while acting within the general scope of his employment.

The business of the so-called Valley Auction Company was that of selling second-hand automobiles at public auction. To assist in preparing for the auctions the Valley Auction Company, through the said Boust, auctioneer, employed the said minor, Frank Rogers. Rogers was employed the day prior to the first auction, and his first duties consisted in distributing around town circulars in reference to the auction the following day. After the circulars were handed out, Rogers informed Boust that he knew how to wash cars. Upon orders of Boust, Rogers washed Boust’s Ford ear. Boust, apparently being satisfied with the work, called up Rose and asked him if he wanted to sell his car at auction, saying, “You better bring it down and let us wash it up.” Rose told Boust to come down and get the car, Boust and Rogers drove down to appellant’s place of business in Boust’s Ford. Rogers, who had no driver’s license, acting under orders from Boust, returned to the lot of the Valley Auction Company with Boust’s Ford, and Boust returned to the lot with appellant’s Dodge car. Boust told Rogers to wash and polish appellant’s car as he wanted to offer it for sale at Saturday’s auction. Rogers testified that prior to washing the ear he drove it on to the lot occupied by the Valley Auction Company, and was seen so to do by Boust, who made no objections.

According to Boust’s testimony the following conversation took place prior to Rogers’ washing the car: