PETERS, P. J., Dissenting. I dissent.
The trial court was presented with three main questions: (1) Was McDonald an employee of respondent or an independent contractor? (2) Was McDonald, if an employee, acting in the course and scope of his employment at the time of the accident? and (3) If McDonald was an employee and acting in the course of his employment at the time of the accident, is the respondent liable for the negligence of Krossoff? The trial court failed to make any express finding at all on the question of whether McDonald was an independent contractor or employee, but held that, assuming he was an employee, he was not acting in the course and scope of his employment at the time of the accident. The majority opinion is based on the same theory. Respondent, however, in its brief, assumes that the trial court found that McDonald was an independent contractor, and spends the major portion of its brief arguing that that question is one of fact, and that the assumed finding is supported by the evidence.
For the purposes of this dissent, it may be conceded, as contended by respondent, that the question whether a commission salesman is an employee or an independent contractor is ordinarily for the determination of the trial court. It has been held that this question is a mixed question of law and fact, and that the trial court’s finding is binding on appeal if supported. (Lee v. Nanny, 38 Cal. App. (2d) 90 [100 Pac. (2d) 832] ; Counihan v. Lufstufka Bros. & Co., 118 Cal. App. 602 [5 Pac. (2d) 694]; Barton v. Studebaker Corp. of America, 46 Cal. App. 707 [189 Pac. 1025] ; Fuller v. Lindenbaum, 29 Cal. App. (2d) 227 [84 Pac. (2d) 155].) For the purposes of this dissent, it may be conceded that, had the trial court found that McDonald was an independent contractor, that finding would find support in the record. It must also be conceded, however, that, had the trial court found that McDonald was an employee, that finding would also be supported by substantial evidence. (Fischer v. Havelock, 134 Cal. App. 584 [25 Pac. (2d) 864]; Phillips v. Lar[488]rabee, 32 Cal. App. (2d) 720 [90 Pac. (2d) 820] ; Cook v. Sanger, 110 Cal. App. 90 [293 Pac. 794] ; Hiner v. Olson, 23 Cal. App. (2d) 227 [72 Pac. (2d) 890, 73 Pac. (2d) 945] ; California C. I. Exch. v. Indus. Acc. Com., 5 Cal. (2d) 185 [53 Pac. (2d) 758].) As already pointed out, however, and this is pointed out in the majority opinion, the trial court did not make an express finding on this point. After finding that the accident was caused by the negligence of Krossoff, and that McDonald was liable for the negligence of Krossoff, the trial court found:
“That defendant Constantine A. Krossoff was not at the time of the aforesaid collision and accident or at any time an employee or agent or servant of defendant Sigmund Eisner Company, Western, a corporation; that in driving and operating the automobile of defendant McDonald said defendant Krossoff was not acting as an agent or servant or employee or representative of said Sigmund Eisner Company, Western, a corporation. That at the time and place of the aforesaid accident defendant R. J. McDonald was not in the course of or in the discharge of any duty or duties of his employment as a salesman upon commission for said Sigmund Eisner Company, Western, a corporation, or otherwise”. That finding certainly does not find that McDonald was an independent contractor—if anything, it is, by implication, a finding that McDonald was an employee but not acting in the course and scope of his employment at the time of the accident. However, in fairness to the respondent, I do not think that the finding should be distorted into a finding that McDonald was an employee. I believe that it should be held that no finding was made on this basic issue, and that the theory of the trial court was that, assuming McDonald was an employee, he was not acting in the course and scope of his employment at the time of the accident. The majority opinion properly interprets the finding in this manner.
The majority opinion holds that this finding, so interpreted, is supported by the evidence. I disagree with this holding. I believe that, as a matter of law, a traveling salesman who is an employee, with a limited and designated territory, is within the course of his employment when going to or returning from that territory by the most direct route. This rule would be clearly applicable if McDonald had a fixed permanent abode in San Francisco. (California C. I. Exch. [489]v. Indus. Acc. Com., supra; Hiner v. Olson, supra; Rafferty v. Dairymen’s League Co-op. Ass’n, (N. J.) 200 Atl. 493; State v. District Court, 141 Minn. 61 [169 N. W. 274].) In California C. I. Exch. v. Indus. Acc. Com., supra, a traveling salesman was on his way home from a completed sales trip. He stopped for the night at an auto camp where he was asphyxiated. In holding that his death was compensable the Supreme Court stated, at page 186:
“There seems no reason for denial that the death of the employee occurred in the course of his employment. ‘As a rule commercial travelers may be regarded as acting in the course of their employment so long as they are traveling in their employer’s business, including the whole period of time between their starting from and returning to their place of business or home.’ (Bradbury on Workmen’s Compensation, p. 105.) Within this rule the traveler, when overtaken by night, may reasonably seek the protection of an inn and still be regarded as acting in the course of his employment.” This, and the other eases cited, establish the rule that traveling salesmen, who are employees, are acting within the course of their employment so long as they are traveling in the employer’s business, including the whole period' of time between their starting from, and returning to, their place of business or home. In other words, in going to his designated district or returning therefrom, the employee is performing an act incidental to the employment. It is true that if the employee does not return directly home, and engages in a purely personal trip, this rule has no application. Such are the cases relied upon by respondents. (See, Newman v. Sunde, 23 Cal. App. (2d) 332 [73 Pac. (2d) 260]; Helm v. Bagley, 113 Cal. App. 602 [298 Pac. 826].)
It is also well-settled that a person who is injured by the negligence of such employee while he is returning from his road trip or errand is entitled to recover against the employer. (Brown v. Montgomery Ward & Co., Inc., 104 Cal. App. 679 [286 Pac. 474] ; Ryan v. Farrell, 208 Cal. 200 [280 Pac. 945] ; Humphry v. Safeway Stores Inc., 4 Cal. App. (2d) 589 [41 Pac. (2d) 208].)
The majority opinion states that, “The purpose of the proposed trip to San Francisco was not in the interest of respondent company.” The point is, that the above cases establish, as a matter of law, that in going to his designated [490]territory, or returning to his home therefrom, the employee traveling salesman is performing an act incidental to, and growing out of, his employment. The majority opinion, apparently in recognition of this principle of law, makes much of the fact that McDonald had no fixed abode in San Francisco. What does the uncontradicted evidence show on this point? McDonald had been in the employ of the respondent for five or six months prior to the accident. The office of the respondent was in San Francisco, and McDonald was hired in that city. His territory was in the San Joaquin Valley, Manteca being the northernmost town in his territory. At the time he was employed he lived in an apartment in a hotel at 542 Mason Street, San Francisco. To avoid double expense, he gave up his apartment when he went on the road, but he returned to San Francisco nearly every week end, and always at the end of each trip, and usually stayed at the hotel at 542 Mason Street. The respondent knew this fact. McDonald had his trunk in the basement at that address. Before going to work for respondent he had worked for another employer in San Francisco for a period of about ten years. He was born in San Francisco and testified that, “naturally I consider it my home”, and again, “I considered San Francisco my home, yes sir.” At the time of the accident he was proceeding on the most direct route from Manteca to San Francisco. He was a registered voter at the time of the accident and gave 542 Mason Street as his residence when he registered. When he was employed by respondent he gave the Mason Street address as his home address. He gave it as his conclusion that at the time of the accident he had no permanent address.
This evidence shows conclusively that the employee treated San Francisco as his home and that the respondent employer knew this fact. The respondent knew of the employee’s custom of returning to San Francisco after every trip, and acquiesced therein. It must be held, as a matter of law, that in returning to San Francisco on the occasion in question he was within the course of his employment within the meaning of the above-cited cases.
If this conclusion is sound, and I submit that it is, then it necessarily follows that the admitted negligence of Krossofl: is attributable to McDonald, as found by the trial court, and that the latter’s negligence is attributable to respondent. The [491]court expressly found that Krossoff was driving “at the request and for and on behalf of said defendant McDonald. ’ ’ That finding is admittedly supported by the uncontradicted evidence. The court also found that Krossoff was not an employee of respondent and that McDonald was without authority to hire Krossoff for the trip in question. That is partially a finding of fact and partially a conclusion of law. In so far as it is a finding of fact it is unsupported by any evidence. The uncontradicted evidence is to the effect that the respondent at no time ever issued any order prohibiting McDonald from hiring a person to assist him in driving his car. In so far as the so-called finding embodies a conclusion of law it is contrary to the rule adopted in this state. The rule is well-settled in this state that in the absence of any prohibition an agent acting in the course of his employment in operating an automobile, may secure a third person to drive, and if the third person is negligent while the car is being operated in the presence and under the supervision of the agent, the employer is liable. (Gates v. Daley, 54 Cal. App. 654 [202 Pac. 467]; Gibbons v. Naritoka, 102 Cal. App. 669 [283 Pac. 845].)
The applicable principles are clearly and concisely stated in Gibbons v. Naritoha, supra, at page 673, as follows:
“The authorities are not in strict harmony as to the master’s liability to third persons for the negligent acts of an unauthorized stranger procured by the employee to assist him within the scope of his employment. (45 L. R A. (N. S.) 382, note; 13 L. R. A. (N. S.) 572, note; Am. Dec. Dig. (Master and Servant), Key Sec. 301 (2).) Clearly the master is not liable when the services of a stranger are performed out of the presence and independent of the employee, or when the services are not within the scope of the servant’s employment, or when the assistance is secured contrary to the direct instructions of the master. (Emison v. Wylam Ice Cream Co., 215 Ala. 504 [111 South. 216]; Butler v. Mechanics’ Iron Foundry Co., 259 Mass. 560 [54 A. L. R. 849, 156 N. E. 720].) Some eases go so far as to hold that the master is liable for such negligence only when there is either express or implied authority for the agent to procure assistance. (18 R. C. L. 785, sec. 245; 39 C. J. 1271, secs. 1458b-1459.)
[492]“The liability of the master has sometimes been denied upon the specific ground that the servant was not present at the time of the performance of the tortious acts complained of. (Blumenfeld v. Meyer-Schmid Grocer Co., 206 Mo. App. 509 [230 S. W. 132].) These eases, however, do not involve the principle of the co-operating negligence of an employee who is personally present with knowledge of the tortious acts of his assistant and possessing the ability to restrain or regulate such acts. By the weight of authority and in accordance with good reason, a master is liable to a third person for the results of the negligent acts of a stranger whose services are procured without, the master’s authority by the servant to assist him within the scope of his employment, under his supervision and in his presence. [Citing many cases.] ” The same rule is announced in Gates v. Daley, supra.
If my analysis of the legal problems in this case is sound, the legal situation is this:
The findings that McDonald was not acting in the course of his employment at the time of the accident, and that McDonald had no authority to employ Krossoff, are unsupported by the evidence. There is no finding on the basic issue of whether McDonald was an employee or an independent contractor. The failure to find on this basic issue is, under the circumstances, reversible error. (24 Cal. Jur., p. 940, sec. 186.) In my opinion, the judgment should be reversed.
Petitions for a rehearing were denied July 19, 1941. Peters, P. J., voted for a rehearing.
Appellants’ petition for a hearing by the Supreme Court was denied August 18, 1941.