ON REHEARING. In a motion for rehearing plaintiff's counsel urge that we have overlooked certain features of the case. He errs in this, as we gave full consideration to every angle of the evidence in order to determine whether the judgment could be upheld.
I. It is contended that an inference can be drawn from the evidence that McNamara at the time of the accident was learning to run the automobile and that this was a part of his duty to his master, and therefore the case was for the jury. We cannot agree with counsel's contention. In the first place, the evidence goes no further than to show that McNamara after having the automobile turned over to him and after he had been taught by a demonstrator to run it, did take it out in the evenings and as he says "was practicing" or learning to run it. It no where appears that the defendant knew of such fact or that it was the duty of McNamara to take the machine out in the evening when not upon his employer's business for the purpose of learning to run it or for any other purpose. The master furnished a teacher for that purpose, who rode with McNamara for five days, and McNamara thereafter ran the machine himself for about ten days. It seems that it would be going beyond the pale of reason to say under the facts of this case that McNamara on the occasion of the accident was engaged on his master's business, when the evidence is plain that he was then engaged upon his own pleasure in taking a ride about the city with his friend Hudson. *Page 323
II. As in his original brief, counsel says that the defendant ratified the act of his employee McNamara, because an officer of defendant company called on McNamara at the jail where he was confined, and suggested that he employ counsel who were the company's lawyers, and further because the defendant did not thereafter discharge McNamara.
In the first place, plaintiff did not sue upon the theory of a ratification by defendant of an unauthorized act of its employee, but on the theory that the agent was in fact authorized and acting for the master at the time of the accident. But outside of this certainly the mere fact of the officer of the defendant company recommending to McNamara who was in jail that he employ certain counsel who happened to be counsel for the defendant should not be held to be a ratification of the unauthorized act of McNamara in taking a joy-ride for his own pleasure at the time of the accident. While defendant did not discharge its employee after the accident, it is undisputed that he was never thereafter permitted to run the automobile. Such circumstances could not constitute a ratification.
Perkins v. Railroad, 55 Mo. l.c. 214, relied on by plaintiff, is not an authority on the proposition under the facts in this case. That was a case of a malicious act of a conductor in wrongfully ejecting a passenger from the train. After the wanton acts were committed, the company still retained the servant as a conductor. The Court held in such a case punitive damages were recoverable, and that the fact that the conductor was retained in the employ of the defendant afterwards would be construed into a ratification of his malicious act.
III. Counsel say that we overlooked an assignment of negligence to the effect that defendant placed in the *Page 324 hands of its employee who was inexperienced and unskilled an automobile and turned him loose on the streets to learn to operate it without any restrictions upon him or without any supervision over him, and that such automobile under said circumstances is a dangerous instrumentality, and that on account thereof defendant should be held liable.
Granting for argument sake that such acts may constitute negligence, the evidence in the case does not support the charge. Instead of being guilty of the said act of negligence, the record discloses that the defendant as heretofore stated, caused the demonstrator to accompany McNamara for five days so as to teach him to operate the automobile.
It is therefore recommended that the motion for rehearing be overruled.