Brooks v. Johnson

MARKS, J.

This is an appeal from a judgment in favor of plaintiffs for damages resulting from a collision between an automobile owned and driven by James T. Brooks in which plaintiffs were riding and one owned by M. Edward Johnson and being driven by Harry Webber. The accident happened on July 8, 1935, on the Lincoln Highway in the state of Wyoming. It is admitted that at the time of the accident Wyoming had no statute of similar import to section 1714]4 of our Civil Code, which has now become section 402 of the California Vehicle Code.

It is admitted that the evidence supports the implied finding of the jury that Webber was negligent in the operation of the automobile being driven by him; that his negligence was the proximate cause of the accident; that plaintiffs were not guilty of contributory negligence. The sole question to be decided here is whether Webber was the agent, servant or employee of Johnson or the servant or employee of Bert Vroom and Vroom’s relation to Johnson.

The evidence on this question is brief. It consists solely of the testimony of the two defendants. Vroom was not a witness in the case.

Johnson’s deposition was taken and used by plaintiffs under the provisions of section 2055 of the Code of Civil Procedure. He was also called as a witness in his own behalf. The same is true of Webber.

Johnson’s evidence may be summarized as follows: On July 8, 1935, he was an automobile dealer in San Diego operating under the name of Johnson Motor Company, selling

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Hudson, Essex and Terraplane ears. Prior to that date he had purchased eight ears at the factory in Detroit and desired them driven to San Diego in a convoy. He engaged Bert Vroom to bring the automobiles to San Diego for $65 a. ear, Vroom to engage and pay the drivers and pay all expenses of the trip, including gasoline and oil for the automobiles. The only arrangement made with Vroom as to the drivers was a request by Johnson that they be local San Diego men with families and that Vroom select capable drivers of reputable character. Johnson did not see or talk to any of the drivers about the trip, did not agree to pay them anything, and paid them nothing. Other than on this particular convoy, Vroom had never performed any services for Johnson. Johnson designated to Vroom the route he was to take and informed him where he could buy gasoline and oil at considerable saving,—places having suitable camps, where other caravans had stopped before. Johnson directed Vroom as to when and where and how often to have the oil changed in the cars'. Johnson had seen and talked with Webber concerning some political activities once before the trip and was informed by Vroom that Webber was to be one of the drivers. Johnson furnished an automobile in which Vroom and the other drivers traveled to Detroit. This automobile was returned with the convoy.