Malmstrom v. Bridges

TUTTLE, J.,

pro

tem.

By this action plaintiff, a pedestrian, recovered judgment through a jury for $10,000 on account of personal injuries received when he was struck by an automobile. Defendant Bridges appeals from such judgment.

At the time of the accident, which happened in San Francisco, appellant was residing in Eureka, California. She owned an apartment house in the former city, which she paid her daughter, Mrs. Holliday, to manage. Appellant purchased an automobile for the use of her daughter in San Francisco. At the apartment house Mrs. Holliday employed one Hawley to do odd jobs about the place. Appellant testified that her daughter was “general supervisor and manager

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of the business down there”, and that the latter was in “complete charge” and “had the authority to hire anybody under those conditions”. Appellant knew that her daughter was employing Hawley. She further testified that “I did not ever ask Mr. Hawley or direct him to do anything when I was down there. She (meaning Mrs. Holliday) takes care of that. ’ ’

The automobile required some repairs. Hawley had some experience in that work, though not while working at the apartment house. He testified that his work consisted of everything to be done about an apartment house, repairing or helping with certain things, “if there was anything broke I repaired it”. Mrs. Holliday wanted the ear repaired so that she could take a trip. She told Hawley to fix it, and gave him the key to the automobile. The latter, in making the repairs, secured the services of a friend, and this was known to Mrs. Holliday. After such repairs had been made, Hawley drove the car to test it out, and while thus driving he drove into a safety zone and struck plaintiff, inflicting the injuries for which compensation is sought.

Appellant’s chief contention is that the evidence is insufficient'to sustain the verdict, in that the relationship of principal and agent did not exist between appellant and Hawley, and that the latter was not the servant or employee of appellant. It is further contended that at the time of the accident Hawley was not acting within the scope of his employment. Defendant Hawley defaulted; his negligence is therefore conceded and that question is not before us. The sole question is the liability of the owner of the car, defendant Bridges. As the recovery is in excess of the liability as fixed by section 171414 of the Civil Code, we may presume that the verdict was given under the doctrine of