Pritchard v. Gilbert

[2]

VAN DYKE, J.

Plaintiff and respondent brought this action to recover damages for assault and battery alleged by him to have been committed by defendant Gilbert, who at the time was an employee of defendant and appellant Samuels. The cause was heard by the court and judgment was rendered in plaintiff’s favor against both Gilbert and Samuels. Gilbert has not appealed.

The sole issue presented is whether Gilbert was acting within the scope of his employment at the time of the assault and battery committed by him upon respondent.

Upon the day of the assault, Gilbert, who was a salesman for appellant Samuels in the latter’s business, came to Sacramento from his home in Red Bluff to attend a sales meeting. He drove to Sacramento in an automobile owned by appellant and furnished to Gilbert for use in his employment. On the same day respondent, also a salesman, attended a sales meeting in Red Bluff, to which he journeyed from his home in Chico. Each man at the time of the assault was returning to his home. They met and passed each other a few miles north .of Chico. Although respondent testified he did not remember passing Gilbert, yet Gilbert testified that respondent so operated his car as to compel Gilbert to drive off the road pavement to avoid a collision. Gilbert turned around and pursued respondent, blowing his horn and blinking his headlights. Hearing the horn and observing the blinking lights, respondent stopped and Gilbert stopped his car back of that of respondent. What occurred then, as testified to by respondent was as follows: Gilbert came up to respondent, “hollered” at him and struck him through the open window of the car. Respondent started to get out and when he opened the car door Gilbert seized him, pulled him from the car and proceeded to beat him about the sides of the face. Respondent was knocked down and was then kicked in the face and ribs. His jaw was broken and he was battered and bruised until rendered unconscious. While this was going on he was calling for help to some people living just across the road whom he knew. These people came over and respondent asked them to call the officers who later came and took him to Chico. The foregoing version is iii sharp conflict with the testimony of Gilbert, who stated in substance that upon being forced from the highway to avoid a collision and believing that whoever was driving the ear was in no fit condition to drive and was a menace to the users of the highway, he turned in pursuit for the purpose of stopping the driver and calling officers to take him in