Hammel v. Keehn

BISHOP, J.,

pro

tem.

In this action for damages caused by the negligent driving of an automobile by defendant Keehn, the evidence, even including that newly discovered for the purposes of a motion for a new trial, was insufficient to reveal the defendants Kaiser Brothers as the employers of Keehn, and hence liable for his carelessness. The trial court was not in error, therefore, in entering a judgment of nonsuit in favor of Kaiser Brothers. As no other error appears to warrant the order granting a new trial as to them, that order is without support and, on this appeal from it, must be reversed.

The owner of the automobile which, according to the complaint, “knocked plaintiff in the air and to the ground”, had purchased it from Kaiser Brothers, the appellants. As a part either of the original transaction or of subsequent dealings, the owner and Kaiser Brothers had an understanding that the latter would service the automobile whenever it was needed. To this end the arrangement was made and the practice had become established that upon receipt of a telephone call, Kaiser Brothers would send someone for the ear, service it, and then return it to the owner. Keehn was returning the car to its owner at the time of the accident which gave rise to this action.

Had this arrangement between Kaiser Brothers and the owner of the car which Keehn drove been the only one of its kind, the facts from which must be answered the question : was Keehn the servant of Kaiser Brothers, the master

1

would be very meager. The inference that one found performing service for another is his servant

(Dibble

v.

San Joaquin L. & P. Corp.,

(1920) 47 Cal. App. 112 [190 Pac. 198], might remain persuasive. That inference may be so destroyed by other evidence, however, that a nonsuit is warranted.

(Grouch

v.

Gilmore Oil Co.,

(1936) 5 Cal. (2d) 330 [54 Pac. (2d) 709].) We find that to be the situation here.

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