After hearing rearguments in this case five members of the court are agreed that the order of the trial court herein appealed from should be affirmed. It follows that the opinion heretofore, filed, so far as it reverses the order and directs the entry of judgment in *Page 641 favor of the defendant company, should be and is vacated and set aside. The conclusions now reached by the majority are that the evidence sustains the verdict and that no reversible errors are shown.
2. That Aldrich, at the time of the accident, was an employe of his codefendant, Denison-Harding Chevrolet Company, hereinafter referred to as the company, and had permission and authority to use the car which caused plaintiff's injury, is not disputed. The decisive question is whether at the time and place of the accident he was within the scope of his employment. The fact that his friend Childs was driving the car at the time, with the consent of Aldrich and with Aldrich riding with him, does not change the situation. Kayser v. Van Nest, 125 Minn. 277, 146 N.W. 1091, 51 L.R.A.(N.S.) 970. More specifically, the question is whether the evidence is sufficient to justify the jury in finding that Aldrich was at the time within the scope of his employment, or, as sometimes stated, was carrying out some purpose of his employment in his master's business. In considering that question we are to apply the established rule that on an appeal of this kind we are to view and consider the evidence in the most favorable light for the plaintiff.
Mr. Harding, the president of the defendant company, testified in substance that Aldrich was employed by them as an automobile salesman; that his sales territory was Bemidji and surrounding country and towns, including Cass Lake; that it was his duty to look around and become acquainted with people in the territory and look for and find purchasers and prospective purchasers for cars; that he was to hustle around and find some one who might buy a car. He had what may be referred to as a roving commission. The company furnished him a car to use. There were no fixed hours of employment. He was sometimes directed to go to see some specific prospect; otherwise he could go and come as he saw fit, in the daytime or evening, and to any place within the territory. He had permission also to use the car for his own pleasure or business. When out on a trip, it was his duty to bring *Page 642 the car back to the company's garage at Bemidji. If he came in later than nine o'clock in the evening, at which hour the garage closed, he could then keep the car at his home overnight and return it to the garage in the morning.
On the afternoon of the day of the accident Aldrich was at the garage and told Mr. Harding he was going to Cass Lake. Harding assumed he was going there on business for the company and said "all right." There is other evidence that Aldrich at that time looked for and obtained from the office files the name of a prospect at Cass Lake whom he intended to see. Aldrich and his friend Childs then, about seven o'clock that evening, drove to Cass Lake in the car furnished to Aldrich by the company. The accident happened on the trip back from Cass Lake to Bemidji late that evening. It happened on the proper route from Cass Lake to Bemidji.
From this evidence the jury could find that Aldrich went on this trip in furtherance of and in the course of his employer's business. The jury could and no doubt did disbelieve and disregard Aldrich's testimony that just after leaving Bemidji he had a sudden mental change of intention and then decided he would not do any business or attempt to see any prospect at Cass Lake. In fact the jury might well disbelieve any or all of his testimony except so far as corroborated. Under the terms of his employment, whether Aldrich went to Cass Lake to look up a particular prospect or whether he went there to meet and get acquainted with people and look for prospects generally, he would in either case be within the scope of his employment. We start out then with the proposition that the finding of the jury that Aldrich was within the scope of his employment in going to Cass Lake is sustained by the evidence. At what time or place, if at all, he thereafter departed from his employment is not clear. We believe it was a question for the jury. They could have found that he departed from his employment when, after leaving Cass Lake on the road back to Bemidji, he drove a short distance off that road to the summer resort where a dance was in progress. There is evidence that a few days before Aldrich and Childs had arranged between them to attend this dance. But *Page 643 they did not go from Bemidji to the dance. They went to Cass Lake and spent a large part of the evening there. The evidence does not show that Aldrich looked for any prospect or did any business on the trip. We do not wish to minimize in any degree the misconduct of Aldrich in drinking liquor on the trip and at Cass Lake and the summer resort, so that he finally became so intoxicated that it was decided not to be safe for him to drive the car back from the summer resort to Bemidji. With Aldrich riding with him and with his consent, Childs then drove the car from the summer resort out onto the road to Bemidji and on that road towards Bemidji until the accident happened. It was Aldrich's duty as a part of his employment to bring the car back to Bemidji, and they were on the proper road and so doing at the time of the accident.
3. Proof of ownership and that the operator is an employe of the owner of an automobile driven on a public street or highway is held in some states to make a prima facie case against the owner for negligence of the operator. It is held to justify an inference that the car was being operated and used by authority and in the business or for the purposes of the owner. In the case of Ferris v. Sterling, 214 N.Y. 249, 253, 108 N.E. 406,407, Ann. Cas. 1916D, 1161 (opinion by Justice Cardozo) the court said:
"The license number of the car, coupled with evidence that the defendant held the license, was prima facie proof that the defendant was the owner. It was more than that; it was prima facie proof that the custodian of the car was then engaged in the owner's service."
From Norris v. Kohler, 41 N.Y. 42, 44, there is quoted with approval this statement:
"The property being proved to belong to defendant * * * a presumption arises that it was in use for his benefit, and on his own account." See also Benn v. Forrest (C.C.A.) 213 F. 763; Ward v. Teller R. I. Co. 60 Colo. 47, 153 P. 219; Gallagher v. Gunn, 16 Ga. App. 600, 85 S.E. 930; Guthrie v. Holmes, 272 Mo. 215, 198 S.W. 854, Ann. Cas. 1918D, 1123; West v. Kern, 88 Or. 247, 171 P. 413, 1050, L.R.A. 1918D, 920. *Page 644
The inferences to be drawn from the facts of ownership of the car and that it was used by defendant's servant or employe may of course be rebutted and overcome by other evidence. But unless conclusively so rebutted, the questions would seem questions of fact for the jury. Our own cases follow the rule. Ploetz v. Holt, 124 Minn. 169, 144 N.W. 745; Johnson v. Evans,141 Minn. 356, 170 N.W. 220, 2 A.L.R. 891; Ahlberg v. Griggs, 158 Minn. 11, 196 N.W. 652; Adams v. Nathanson,161 Minn. 433, 201 N.W. 927; White v. Brainerd S. M. Co. 181 Minn. 366,232 N.W. 626. We cannot say that the inference so to be drawn was so conclusively overcome as to take the case from the jury.
4. It is undisputed that at the time of the accident the car was upon the proper road and was being driven back to Bemidji, to which place it was Aldrich's duty to return it. If, as the jury found, Aldrich went to Cass Lake on the business of his employer, and at the time of the accident was on his proper way to bring the car back to Bemidji, then he was at that time within the scope of his master's business, even if it be assumed that he had deviated from his employment by going out of his way to the summer resort.
In White v. Brainerd S. M. Co. 181 Minn. 366, 369,232 N.W. 626, 627, where the servant had deviated from his course and employment but had, before the accident happened, returned to the proper road and route over which he was to drive the car back to his employer, this court said:
"Unquestionably in driving the car at the time and place of the accident Robert Anderson [the employe] was within the scope of his employment." See also Cummings v. Republic Truck Co.241 Mass. 292, 135 N.E. 134; Riley v. Standard Oil Co. 231 N.Y. 301,132 N.E. 97, 22 A.L.R. 1382; Edwards v. Earnest,206 Ala. 1, 89 So. 729, 22 A.L.R. 1387; Gibson v. Dupree,26 Colo. App. 324, 144 P. 1133; Graham v. Henderson, 254 Pa. 137,98 A. 870; Good v. Berrie, 123 Me. 266, 122 A. 630.
5. The verdict is claimed to be excessive. In view of the serious and permanent injuries to plaintiff, we cannot say that the verdict is excessive. *Page 645
6. All assignments relating to errors in the trial have received careful consideration, and no reversible errors have been found. We do not deem it necessary to consider these assignments in detail.
In the opinion heretofore filed it is inadvertently stated that both Aldrich and Childs drank intoxicating liquor on the trip. There is no evidence that Childs drank any liquor. The evidence is to the contrary, and the statement as to Childs' drinking is withdrawn from that opinion.
The order of the district court here appealed from is affirmed.