82 Pa. Super. 546 | Pa. Super. Ct. | 1923
Argued October 19, 1923. The plaintiff left his automobile with the defendant, a garage keeper, who agreed, for a consideration, to store and wash it. While the car was in defendant's garage it was taken therefrom without the knowledge or consent of the plaintiff or defendant, but with the consent of the defendant's employee, the night man, who was in charge of the garage. The person who was permitted to take out the car caused it to collide with a truck and the car was damaged. The learned trial judge who exercised both the function of court and jury found in favor of the defendant, assigning as a reason that the night man was not acting within the scope of his employment when he let another person take out the car contrary to the instructions of the master. We are all of the opinion that the conclusion arrived at by the learned court was erroneous. The reading of the testimony discloses that the night man was in charge of the garage and "his duties were to take particular care of the garage, wash the cars and store the cars." (Defendant's testimony.) It is very evident from this that the owner during his absence delegated to his servant the duties which he owed to those who patronized his garage. No one would hold if the owner had allowed this car to be taken out of the garage that he would not be responsible; what he did *548 through his servant he was as much responsible for as if he had done it himself.
This court had occasion to say in Hare v. Mulligan,
In McLain v. The Automobile Company, 72 West Virginia 738, the garage man's servant, in charge of the garage at night permitted a person, without authority from the plaintiff, to take the car on a joy-ride, and it was wrecked. The court held the garage keeper liable for ordinary and reasonable care, and said that it was not ordinary or reasonable care for the garage keeper to allow the automobile to be taken by a third party without owner's consent. The court in that case said: "The *549
garage keeper cannot leave the garage solely in the hands of a servant and then say that his negligence in letting a car out is beyond the scope of his employment. That would leave the garage without anyone to protect cars; in itself it would be want of reasonable care." To the same effect are Corbet v. Smeraldo,
The lower court based its conclusions upon the case of Fireman's Fund Insurance Company v. Schreiber, 150 Wisconsin 42, in which case the court held the garage owner not liable when an employee who came on duty about 6 o'clock P.M. and stayed as long as necessary to wash and polish the automobiles took a car that was left in the charge of the garage owner and caused damage to the machine. Although the distinction may not be important, it may be observed that the employee in the above case was a washer of cars and was not charged with the custody of them, whilst in the present case, the night man was in complete charge of the entire garage. It will also be noted that the decision upon which the court relied was by a divided court, three of the seven judges joining in the dissenting opinion, and the case has not been followed. See comment on the case in Corbet v. Smeraldo,
The judgment of the lower court is reversed, the record is remitted with instructions that judgment be entered for the plaintiff for $596.36 with interest from the proper date. *550