4 A.2d 420 | Conn. | 1939
The plaintiff brought this action to recover damages done to a car he owned as the result of a collision between it and another car. The defendants are Martin, who was driving the plaintiff's car, Howard J. Holmes, who was driving the other car, and his father, Albert G. Holmes, who owned it, his liability being based upon the fact that the son was operating it as a family car. The finding, the corrections in which claimed by the appellant we do not need to consider, states the following facts: The plaintiff operates an automobile sales agency and a garage. Martin became interested in a car he had for sale and the plaintiff instructed an employee, Foster, to put markers on it and take Martin for a ride. Martin asked permission to drive the car himself. The plaintiff directed Foster to warm it up and then turn it over to Martin. Foster did this, explaining its automatic gearshift to Martin before turning it over to him. Thereafter Foster sat on the driver's seat to the right of Martin. The collision occurred while Martin was operating the car. The only finding of the court as to the control of the car after it was turned over to Martin is that while he was operating *169 it Foster did not tell him to drive fast or slow, what streets to go on, when to stop or slow down, and in no way attempted to supervise or exercise any control over his driving of the car. The trial court gave judgment against all three defendants, and the defendants Holmes have appealed on the ground that Martin at the time of the collision was operating the car as the plaintiff's agent and that consequently his negligence would be imputed to the plaintiff and prevent a recovery by him.
In three cases we have held that where a prospective purchaser was intrusted with an automobile by the seller in order to try it and see if he cared to purchase it and he was not accompanied by the owner of the car or his representative, the purchaser was not the servant or agent of the owner so that the latter was responsible for the former's negligent conduct. Marshall v. Fenton,
There may be situations where the seller of a car will not be liable for the negligence of a prospective purchaser when the seller's agent permits him to operate it, although the agent is riding in the car. This would only be where the agent has surrendered to the prospective purchaser the control of its operation. In Keck v. Jones,
However, to absolve the seller from liability for the negligence of a prospective purchaser in operating a car while accompanied by an agent or employee of the seller, something more is necessary than the mere fact that the agent or employee failed to exercise control over that operation. In most of the cases we have cited or referred to where the seller was held liable for the negligence of the purchaser, his agent was not in fact exercising any such control. The seller is absolved only where his agent has abandoned his right to control the operation of the car and surrendered that operation wholly to the purchaser. Sampson v. Aitchson, L. R. (1912) App. Cas. 844, 850; Greenie v. Nashua Buick Co.,
The finding of the court in this case goes no farther than to state that the seller's agent did not actually exercise any control over the car while Martin was driving it. It does not state that the seller's agent had surrendered to Martin the right to control its operation. The finding was not a sufficient basis for a conclusion that Martin was not operating the car in the place and stead of Foster, the plaintiff's agent, *172 and for holding that Martin's negligence would not be imputed to the plaintiff as his principal.
There is error, the judgment is set aside and a new trial ordered.
In this opinion the other judges concurred.