Bourne v. Northern Counties Title Insurance Co.

California Court of Appeal Jan 24, 1935 No. Civ. 9278Published

Before: James

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Holding. The court held that the evidence was insufficient to support a verdict against the employer because the undisputed testimony established that the employee was acting outside the scope of his employment at the time of the accident.

Issues

Whether the evidence was sufficient to support a judgment against an employer for an employee's automobile accident.
Whether an inference of agency is overcome by clear, positive, and uncontradicted testimony that the employee was acting outside the scope of employment.

Disposition. reversed

Quotations verified verbatim against the opinion

“in the face of clear, positive and convincing testimony to the contrary the inference that an employee driving an automobile owned by his employer is acting within the scope of his employment cannot stand”

“where the facts are admitted or are susceptible of but one meaning, the question of whether the act was within the scope of the servant’s employment becomes one of law.”

JAMES, J.,

pro tem.

The sole question presented by this appeal is the sufficiency of the evidence to support the judgment in favor of plaintiff and against the defendant and appellant, Northern Counties Title Insurance Company.

The action is one for damages for personal injuries received by the plaintiff in an automobile collision between an automobile operated by him and one belonging to appellant, which at the time of the accident was being operated by the defendant Bollinger, who admittedly at that time was in appellant’s employ. It may be conceded, therefore, that an inference arose from these admitted facts sufficient to establish a

prima, facie

case that appellant’s automobile was then being operated by Bollinger under the authority of his employer.

(McWhirter

Fuller,

35 Cal. App. 288 [170 Pac. 417];

Grantham

Ordway,

40 Cal. App. 758 [182 Pac. 73];

Randolph

Hunt,

41 Cal. App. 739 [183 Pac. 358];

Dierks

Newsom,

49 Cal. App. 789 [194 Pac. 518];

Fahey

Madden,

56 Cal. App. 593 [206 Pac. 128].) But it appears to be well settled that “in the face of clear, positive and convincing testimony to the contrary the inference that an employee driving an automobile owned by his employer is acting within the scope of his employment cannot stand”.

(Market Street Ry. Co.

George,

Bourne v. Northern Counties Title Insurance Co.

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JAMES, J.,

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