Newman v. Sunde

California Court of Appeal Oct 29, 1937 No. Civ. 11548Published

Before: McCOMB

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Holding. The court held that an employee was not acting within the scope of his employment at the time of an accident because he had departed from his employer's business to engage in personal matters, and that the trial court's exclusion of evidence was not reviewable absent an offer of proof.

Issues

Was there sufficient evidence to raise a jury issue regarding whether the employee was acting within the scope of his employment at the time of the accident?
Was the trial court's ruling sustaining an objection to a question regarding employment instructions prejudicially erroneous?

Disposition. affirmed

Quotations verified verbatim against the opinion

“at the time of the accident he had departed from the pursuit of his employer’s business and was engaged on matters entirely personal to himself.”

McCOMB, J.

This is an appeal by plaintiffs from a judgment in favor of defendant Sears, Roebuck & Company after the trial court granted said defendant’s motion for a nonsuit in an action to recover damages for the wrongful death of

[333]

Samuel M. Newman, deceased. Plaintiffs are decedent’s only heirs at law.

Viewing the evidence most favorable to plaintiffs, as we must in reviewing a judgment predicated upon the granting of a motion for a nonsuit

(Montgomery

Nelson, 211

Cal. 497, 499 [295 Pac. 1034]), the material facts are these:

Defendant Myron D. Sunde was a commission salesman, selling vacuum cleaners for his codefendant, Sears, Roebuck & Company, both inside and outside of their store. Most of his time was spent on the outside soliciting sales.

March 17, 1936, he left Sears, Roebuck & Company store at approximately 1:10 P. M. to call upon prospective customers. At about 5:00 P. M. he finished his last call, having collected from a customer the down payment on a vacuum cleaner previously sold the party. He then decided to make a personal call on some friends by the name of Shevriek, as he was interested in purchasing a rug owned by them. He arrived at their house between 5:15 and 5:30, where he remained for about twenty minutes. After completing his visit with the Shevricks he decided to stop at the home of parties by the name of De Chazo. In February of 1936 he had sold the De Chazos a vacuum cleaner and at that time had learned that Mr. De Chazo was building a fishing boat, on the initial trip of which Mr. De Chazo invited him to be his guest. It was defendant Sunde’s sole purpose in visiting the De Chazos’ home to inquire about the progress being made in the building of the boat. While waiting for Mr. De Chazo to arrive home, he made an adjustment upon the vacuum cleaner which they had purchased. He remained at their home until about 7:00 P. M., at which time he left, and shortly thereafter while on his way home so negligently operated his automobile as to collide with Samuel M. Newman, who died as a result of the injuries he received.

The questions necessary for us to determine are these:

Newman v. Sunde

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