In my view Downs was merely a servant of the corporation; however, he may have been called an agent.
There being no agreement or direction from the employer restricting the means to be used by him in his work, any usual or suitable means was authorized, and its use was within the scope of Downs' employment. In that situation his use of an automobile was analogous to a use of his own legs.
The American Law Institute Restatement, Agency, Sec. 239, gives the rule in a comment: "If the master directs a servant to accomplish the result and does not specify the means to be used, the servant is authorized to employ any usual or suitable means." And an illustration given is: "P employs A a messenger boy, giving no instructions as to means of locomotion. A's use of his own bicycle in delivering messages is within the scope of employment."
These considerations lead me to vote for a reversal in the first appeal. *Page 604