Serrer v. Bartholmew , 1 Ohio Law. Abs. 781 ( 1923 )

EVINE, J.

Epitomized Opinion

Action by Bartholomew for loss of services to m because of injuries resulting to his wife from e alleged negligence of Serrer’s servant. The evi-j^e disclosed that on the day of the accident, Cos-jW the regular driver of Serrer’s truck, loaded the Buck with goods to be delivered, and the goods Bsre delivered. At the time of the collision of the Buck with Bartholomew’s wagon, the driver of the Buck gave his name as Novak to Bartholomew. Bie truck was not returned to Serrer until that Bening, when a stranger brought the truck and mediately departed without any explanation, rrer testified that he made no effort to locate istello to have him testify. Serrer urged that ere is no proof tending to show that at the time the accident Serrer’s truck was driven by his au->rized agent. In aifirming the judgment for Bar-domew, the Court of Appeals held:

1.“There is no presumption that Costello aban-ned his employment at the time he permitted or ¡tructed a stranger to take charge of same. Once ; authority to drive and operate the Ford truck established, it is not to be presumed that the cir-nstances surrounding his act of permitting a 'anger to drive it were such as to make his act authorized, for the circumstances may be such to give him implied authority so to do’. In such es the burden of proving circumstances to show an tndonment of employment on the part of Costello, ;ether with an authorized turning over of the rd truck for a stranger to drive and operate, rests, >n the employer. With this burden the employer not comply, and the case at bar