Crisp v. Wright

¶1The foregoing ruling represents the conclusion of my colleagues who constitute the majority of the court. From it I dissent. Speaking for myself alone: It is undisputed in the evidence that Tyson was not regularly employed by the defendant as his servant to operate the automobile. So far as it can be inferred from the evidence, Tyson was engaged by Crisp for no purpose whatsoever (construing the evidence most strongly for the purpose of sustaining the plaintiff’s case) than to operate the automobile and to take Crisp home or wherever Crisp was going; and that Tyson was so engaged by Crisp at the suggestion of a policeman, because Crisp was drunk and it was not advisable for Crisp himself to operate the automobile. While it is true that Crisp remarked to Howard that Crisp would take Howard home, this remark to Howard, although it was made in the presence of Tyson, certainly could not be construed as any authority to Tyson, without further orders or consent from Crisp, to take the automobile without Crisp’s knowledge, and, leaving Crisp behind, proceed to take Howard home. In so far as Tyson had any authority to operate the automobile, that authority was to take Crisp home or where Crisp was going. After they arrived at 87 Harris Street, Tyson had no authority respecting the operation of the automobile, if he had any, except to take Crisp from 87 Harris Street to any other place where Crisp might desire to go. Tyson’s authority to operate the automobile had terminated, and he had no authority to operate it any further, unless Crisp had reauthorized him to do so. It does not appear that Crisp did this. The fact that Crisp had not redeemed the keys from Tyson is insuffi*342dent, either alone or in connection with other evidence, to authorize an inference that Tyson had authority to use the automobile other than to take Crisp home or where Crisp was going. The situation is the same as if Tyson had carried "Crisp home and had put the automobile in Crisp’s garage, without delivering the keys to Crisp and without Crisp having called for the keys, and Tyson had gone to Crisp’s garage the next day and had taken out the automobile and had gone on some unauthorized errand for Crisp such as taking Howard home. It appears from undisputed evidence that at the time of the collision Tyson was not operating the automobile as the agent or servant of Crisp, or with authority from Crisp. Therefore the evidence is insufficient to authorize the inference that the negligence of Tyson in the operation of the automobile which caused the damage to the plaintiff’s automobile was imputable to Crisp. I am of the opinion that the verdict for the plaintiff was unauthorized, and that the court erred in overruling the motion for a new trial.