Counsel for appellant argue the case as if the only question involved was the giving of the affirmative charge. We think the foregoing opinion distinctly discloses that the reversal of this cause is rested upon the action of the court in directing a verdict for the defendant, and therefore leaving nothing for the determination of the jury.
The evidence on the part of the defendant was of a negative character only, and, in any event, its credibility was for the jury — the consideration of which the action of the court deprived them.
Counsel concede in brief that a chauffeur *Page 265 regularly employed to operate an automobile need not be directed as to every move, and that he has such implied authority, as to the control and operation of the car, as is necessary and incident to his employment, and might, of course, to quote from the brief of counsel, "take the car back and forth from the garage, and go from one point to another in order to get equipment and tools with which to make repairs, because, as stated, this will be incident to his employment."
In the instant case the chauffeur was neither examined, nor was there any evidence offered as to his whereabouts, or any explanation as to his absence. We have dealt with the case as presented by this record, wherein the court took the case from the consideration of the jury, leaving nothing for their determination as to the credibility of the evidence offered. This, we think, was clearly expressed in the opinion, where, without reviewing the authorities, we contented ourselves by making reference to the recent case of Shipp v. Shelton, upon this question. We have not for consideration the question of the giving of an affirmative charge, which leaves for the jury's determination the credibility of the testimony offered; but for the reversal of this cause is rested, as expressly stated, upon the action of the court as above indicated. We therefore enter into no discussion of the question argued by counsel in brief until the same arises for consideration.
The application for rehearing is therefore denied.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.