Marschall v. Glaeser

ON REHEARING. The facts in this case are reported in our former opinion to which reference is made. We there held and now affirm that Smith, the owner of the car, is liable to plaintiff for the injuries sustained by him, see, Hunter v. Baldwin, 268 Mich. 106; that a servant has implied authority in an emergency to employ an assistant and a person so employed becomes a servant of the master, see 76 A.L.R. 963; that what constitutes an emergency is often a question of fact, see Fiesel v. New YorkEdison Co., 123 App. Div. 676 (108 N.Y. Supp. 130); D'Allesandro v. Bentivoglia, 285 Pa. 72 (131 A. 592); Byrne v. Pittsburgh Brewing Co., 259 Pa. 357 (103 A. 53, L.R.A. 1918 C, 1198).

During the trial the following question was asked by plaintiff's counsel of the assistant manager:

"Q. Did you have permission of Mr. Glaeser to ask the owner of the car, when you were fixing it up this way, to ask the owner of the car to start the motor?"

The trial court sustained an objection to answering this question. In this cause plaintiff would be entitled to recover if he could establish the existence of the relationship of master and servant between Smith, the owner of the car brought in for repairs, and defendant, the owner of the garage. One of the ways to establish this relationship was to show that the assistant manager of the garage had express authority to require Smith to start the car. An affirmative answer to the question would be helpful in establishing the express authority. Plaintiff was entitled to an answer to the question. An answer whether affirmative or negative would have a direct bearing on the question of whether or not the assistant manager was acting within the scope of his authority in calling upon the owner of the car to help him. The trial court's refusal to permit an answer to the question is reversible error.

The judgment is reversed and a new trial granted. Plaintiff may recover costs.

WIEST, C.J., and BUTZEL, BUSHNELL, POTTER, CHANDLER, NORTH, and MCALLISTER, JJ., concurred.