Rathbun v. Payne

THE COURT.

Plaintiff recovered a judgment against the defendant in a personal injury action based upon the negligence of an automobile driver alleged to have been in defendant’s employ.

The defendant, who has appealed, contends that the evidence fails to show the alleged employment, that the trial court erred in certain of its instructions to the jury, and that both the court and plaintiff’s counsel were guilty of prejudicial misconduct.

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It is admitted that the driver, named Asbitt, was a rente carrier of newspapers for the defendant, who does business and publishes a newspaper under the name of “San Jose Evening News.” At the time of her injury the plaintiff was riding in a Ford coupe owned and driven by Asbitt, who was then delivering newspapers. The latter was known as a motor route delivery man; his territory covered some 63 miles and required several hours of his time each day to serve the subscribers. He had been so engaged for about four years. The plaintiff had been a teacher in the public schools, and was engaged to be married to Asbitt. She usually accompanied him on his route each Saturday. On these occasions she assisted in rolling the newspapers and serving the customers, and also familiarized herself with the route in order that she might make the deliveries in case he might be temporarily unable to do sot At other times she would roll and deliver the papers alone over part of the route, using her own automobile for this purpose. In 1933 the two entered into an agreement that she should render this service regularly each week; and Asbitt testified that defendant and his employees knew that she was so assisting him. This continued to and including the day on which she was injured, and she was so engaged when the injuries happened. It was testified that her assistance enabled Asbitt to make his collections and render prompt deliveries to the subscribers; but it appears that she received no pecuniary compensation for the services. The evidence shows that the route was owned by the defendant, who paid an amount weekly to the route carrier based on the route mileage, this payment being a partial compensation for the gasoline used and car up-keep. The carrier furnished his own automobile and purchased the papers from the defendant. In turn he sold and delivered the same to his customers, of whom no record was kept by the defendant. He retained the difference between the sums paid for papers and the amounts received from the customers. No account of receipts was rendered to the defendant and, with the exception of the mileage allowance, the carrier bore all the expense. The defendant controlled the conduct of the work to the extent that it was the carrier’s duty to make regular and prompt deliveries, to use his efforts to increase the circulation and promote the goodwill of the public toward the paper. In addition he attended meetings where ways and