Goldie v. Dillon ( 1962 )

SMITH, FRANK A., Associate Judge

(concurring specially).

The affidavit and deposition show that when the motor of the mower repeatedly stalled, the boy who had been working'on it would try to race it to show how it would fun. Douglas, who was standing by and observing, told Defendant Dillon that all it needed was an adjustment of the carburetor and asked him (Dillon) if he wanted him to do it, to which Dillon consented.

Appellee contends that any consent by Dillon extended only to adjusting the carburetor and there was no evidence that Dillon knew or acquiesced in Douglas’ manipulating or operating the mower itself.

It is a matter of common knowledge that in making adjustment of a carburetor the motor will be speeded up or “revved up” in order to test the adjustment and the running of the motor as adjusted, hence it may be inferred that by authorizing the adjustment of the carburetor to be made, the authority to test it by racing the motor would be implied. In fact, a testing by speeding a motor may be essential to an adjustment of a carburetor. Only by testing may the mechanic determine as to proper adjustment.

I agree that there is a material genuine issue of fact whether under the circumstances the relationship of principal and agent was created.