Prickett v. Whapples

SHINN, J.,

pro tem.

Appeal by the owner of an automobile against whom judgment for damages was given following an accident. Judgment went against both defendants, Mangan and Whapples; the former does not appeal.

Plaintiff, a pedestrian, was struck by the car owned by appellant Whapples and driven by Mangan. Plaintiff was crossing a public street in a crosswalk at the end of a block. It was dark but the streets were lighted. Plaintiff testified that she looked but did not see the car or its headlights and was struck after proceeding four or five steps into the street. Mangan testified that he ran into plaintiff before he saw her. The determination in plaintiff's favor of the issues of negligence and contributory negligence finds support in this evidence.

The judgment against Wrhapples was based on findings that Mangan was the agent of Whapples, and that he was driving the ear with the latter’s consent and within the scope of his employment. Defendant Whapples contends that there was not sufficient evidence to support these findings. Whapples was a police lieutenant, on duty during the daytime at San Pedro. Each evening he returned home by street car, alighting therefrom at a point about one mile from his residence. Mangan lived in Whapples’ household. Each had a car. Mangan was accustomed to meet Whapples at the car line and drive him home. In so doing he used his own car, but on the evening of the accident, his car being out of order, he took WTiapples’ car. He drove to a store to make a purchase and shortly thereafter became involved in the accident.

The finding of agency is amply supported by the evidence. Prom the fact that Mangan made a practice of calling

[703]

for Whapples at the station the court properly inferred that there was an understanding between them pursuant to which Mangan, in so doing, was rendering personal services to Whapples. As Mangan in performing these services very clearly was not following an independent calling, he was an employee (Civ. Code, see. 2009). He was acting within the general line of his duties, from which fact, as appellant properly concedes, the inference arose that he was acting within the scope of his authority