Hilliard v. Fabricius

MAXEY, J.,

pro tem.

This action was brought by the surviving wife and son of Lester Hilliard, seeking damages for injuries sustained by Lester Hilliard on December 11, 1933, that resulted in his death.

The defendant, Fabricius, was a truck driver, and on the 11th day of December, 1933, was driving and operating an International motor truck belonging to the defendants, Biasotti, Willard & Biasotti. It is alleged in the complaint, and admitted by appellants, that the accident resulting in the death of Lester Hilliard was occasioned by the careless and negligent operation of the truck by Fabricius. The defendants, Biasotti, Willard & Biasotti, are a copartnership consisting of Louis Biasotti, Frank Willard and Allie Biasotti. The copartnership was originally alleged to consist of Louis Biasotti, Frank Willard and Louis Lovotti. During the course of the trial it was developed by the evidence that this firm had been succeeded by the present firm of Biasotti, Willard & Biasotti; that Allie Biasotti had succeeded to the interests of Louis Lovotti; and that Louis Lovotti was not concerned with said action. Thereupon, the court permitted the plaintiff to file an amended complaint to conform to the proof, which amended complaint prayed for damages against Biasotti, Willard & Biasotti instead of the former firm or co-partnership of Biasotti, Willard

&

Lovotti. The copartnership of Biasotti, Willard & Biasotti was engaged in the general contracting business at Stockton, California, and in connection with its business owned several motor trucks used in transporting highway materials.

The jury returned its verdict against all of said defendants for the sum of $15,000. Upon defendant’s motion for a new trial, this amount was reduced to $12,000, and judgment entered for the latter amount. Defendants have appealed from the judgment so entered.

The points raised by appellants are:

1. Insufficiency of evidence to support implied finding of jury that Fabricius was a servant, agent or employee of Biasotti, Willard & Biasotti, at the time of the accident.

2. Insufficiency of evidence to support verdict of liability against Biasotti, Willard & Biasotti, as general employers

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