Martinelli v. Stabnau

SHINN, J.,

pro

tem.

Appeal by plaintiffs from a judgment in favor of defendant Prudential Insurance Company of America, in an action for personal injuries arising out of an automobile accident.

The appeal of plaintiffs comes to this court upon the judgment roll. Judgment was in their favor against defendant Stabnau and in favor of defendant Prudential Insurance Company. Gertrude Martinelli was struck and injured by an automobile operated by defendant Stabnau, who was employed by respondent Prudential Insurance Company under a written contract. By the terms of his employment Stabnau

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was to solicit insurance business, collect premiums, deliver policies, and attend meetings of agents whenever and wherever designated by the corporation. He was required to devote his entire efforts and time to the interests of his employer; he had a certain territory in which to work, but was allowed and was often required to leave that territory and perform services in other localities. Within a few minutes before the accident he had been engaged in the business of the company. The court made the following finding: “It is true that at the time of the accident defendant, Brognard Stabnau, was not engaged in any of the duties required by his contract of employment to be performed for and on behalf of defendant, The Prudential Insurance Company of America; that at the time of said accident said defendant, Brognard Stab- . nau, was engaged in returning to his own home for the purpose of eating lunch and had terminated his business dealings prior to the time said collision occurred. ’ ’

The case presents the sole question whether the employee, while on his way home to lunch, was acting in the ■ service of his employer and not solely in his own behalf, while he was doing no act or thing which pertained to the business of his employer. The question contains its own answer. The finding we have quoted is conclusive as to the question of fact involved. The servant was not at the time of the accident actually performing any service for his employer. Therefore the latter was not responsible for his acts.

(Kish