Negligence — Automobiles — Agency — Control over operation of vehicle — Lessee of concession — Payment in money and services — Evidence.
1. The test of agency in the operation of an automobile is, whether the driver stands in such a relation to the alleged principal that the latter has actual or legal control of the operation of the vehicle at the time of the accident. [380]
2. Where there is no control by the alleged principal over the method or process by which the employment is carried out, responsibility does not attach to the employer for the actions of the person so employed. [381]
3. In an action of trespass for personal injuries, evidence that the defendant was a public restaurant, the parking concession in connection with which was leased by defendant to A, that the contract of leasing required payment by A in money and services, which included driving employees and guests of the restaurant to their homes and elsewhere at the request of its officials, and other odd jobs, that A was the operator of the automobile involved in the accident, which he had borrowed from a friend, and that the accident occurred while he was driving the secretary to the president of the defendant corporation to her home on the instructions of the manager, was held insufficient as a matter of law to establish that A was the agent of defendant at the time of the accident. [378-81]
Argued December 9, 1937.
PER CURIAM, January 3, 1938:
The judgment of nonsuit is affirmed on the opinion of President Judge GORDON.