Ingle v. Bay Cities Transit Co.

DORAN, J.

This is an action for damages for personal injuries and property damage caused by a collision between plaintiff’s automobile and a bus belonging to defendant transportation company. A trial by the court resulted in a judgment for defendant from which plaintiff appeals.

The record reveals that defendant, as a common carrier, operated passenger busses in the city of Santa Monica. On September 4, 1943, the date of the accident, Joe Holmberg was, and had been since June 3, 1943, employed by defendant as a bus driver. On the day of the accident Holmberg, who operated a bus on regular schedules to the Douglas Aircraft Company, had completed the usual trips at 9:30 p.m., but was scheduled to make one more trip over the same route at about 11:30 p.m. Richard Tidwell was employed by defendant at the garage or base where the busses were kept and prepared for use. Quoting from respondent’s brief, the sequence of events leading up to the accident occurred as follows:

“Holmberg came into Tidwell’s office and inquired ‘if he could take his run out. ’ He was drunk at that time. Tidwell told him he was in no shape to take the run out. Holmberg went and got into the bus which had been put out by Tidwell for the run and Tidwell pulled him out, told him to get out, and took the bus and backed it up and parked it against the fence about 25 feet or 30 feet away. Another bus undergoing repairs was parked nearby and Holmberg took that bus and drove out into the street before Tidwell got back. The bus taken was not the one assigned to the Douglas run. There was nothing to indicate to Tidwell, at the time he took the bus from Holmberg and told him not to drive, that Holmberg conceivably might take any other bus although not so authorized. The accident occurred just outside the lot adjacent to

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the defendant bus company’s garage on 4th Street in Santa Monica.”

The findings recite “That it is not true that the defendant BAY CITIES TRANSIT COMPANY was driving or operating said passenger bus, which collided with said plaintiff; and that it is not true that said passenger bus was being driven by any agent, servant or employee of said defendant BAY CITIES TRANSIT COMPANY while acting within the scope or course of such agent’s, servant’s or employee’s authority; and that it is not true that the defendant BAY CITIES TRANSIT COMPANY was reckless, careless or negligent in the premises.” Appellant contends in effect that said finding was error as a matter of law and that the evidence fails to support such finding. In that connection it is argued that Tidwell was without authority to “destroy” the relation of employer and employee and that, at the time of the accident, Holmberg was an employee of defendant, “acting within the scope of his employment.”