Darling v. Dreamland Bedding & Upholstering Co.

STURTEVANT, J.

On April 26, 1939, the plaintiff Arlene Darling, while riding in an automobile which was being driven by the defendant Walter Carter, was injured in a collision. To recover damages for injuries sustained she and her husband commenced this action against Walter Carter, Dreamland Bedding & Upholstering Co., a copartnership, his employer, Jess Ernest Norris who was driving the other automobile, and Norris Printing Company, a copartnership, of which he was a member. The action was tried before the trial court sitting with a jury. At the end of the plaintiffs’ ease the trial court granted the motion for a nonsuit of Dreamland Bedding & Upholstering Co. and it granted a similar motion in favor of Walter Carter. As the other defendants had not demanded a jury, the jury was dismissed. The case proceeded as to the remaining defendants and on the final submission judgment was rendered in their favor as against the plaintiffs. From the judgments based on the orders of nonsuit the plaintiffs have appealed.

Prior to April 26, 1939, Dreamland Bedding & Upholstering Co., a copartnership, was engaged in manufacturing, renovating and selling furniture and home furnishings at its

[255]

place of business in San Francisco. The defendant Walter Carter was one of its employees acting as a salesman. He sold on commission and in the transaction of his business lie operated his own automobile. The Norris Printing Company was engaged in the printing business at San Francisco and one member of the partnership was the defendant J. B. Norris.

Early in the morning on April 26, 1939, the defendant Walter Carter was driving south from San Francisco toward Burlingame. In the car riding with him were Mrs. R. M. Miller and the plaintiff Mrs. Arlene Darling. In the neighborhood of Mills Field Airport Carter’s automobile collided with the automobile being driven by the defendant J. B. Norris.

It was the theory of the plaintiff Arlene Darling that she was a passenger in the car being driven by the defendant Carter and that he was responsible to her as a passenger. On the other hand it was the theory of the defendant Carter and Dreamland Bedding & Upholstering Co. that Mrs. Darling was a guest, that there was no evidence that Carter was intoxicated, or that he was guilty of wilful misconduct, and therefore the defendants were not liable.