Harvey v. D & L Construction Co.

California Court of Appeal May 16, 1967 No. Civ. 29994Published

Before: Jefferson

AI Brief

AI-generated · verify before citing

Holding. The court held that the trial court erred in granting a nonsuit because there was sufficient evidence for a jury to reasonably infer that the employee was performing a 'special errand' for his employer at the time of the accident.

Issues

Whether the evidence was sufficient to create a jury question regarding whether an employee was acting within the scope of his employment under the 'special errand' exception to the 'going and coming rule.'

Disposition. reversed

Quotations verified verbatim against the opinion

“The evidence was sufficient under the “special errand” theory to support a finding that D & L’s employee was acting within the course and scope of his employment at the time of the accident.”

“Consequently, the court erred in granting the nonsuit.”

JEFFERSON, J.

Plaintiff, a minor, by his Guardian

ad Litem,

appeals from a judgment entered after the granting of a nonsuit in favor of the defendant D & L Construction Company (hereafter referred to as D & L), in a personal injury action brought against it and its employee, one Jesse Chism (not a party to this appeal), who was driving his pickup truck on a highway in Arizona when he struck plain

[50]

tiff, who was riding a bicycle, severely injuring him. The accident occurred while Chism, a cement finisher, was on his way home to Pasadena for the weekend from a construction job in Yuma, Arizona, where he was employed during the week by D & L. Riding with Chism at the time was one Chris Richards, a fellow D & L cement finisher, who was also going home for the weekend.

Defendant D & L was sued on the theory of

respondeat superior.

The nonsuit was granted upon its motion, at the conclusion of the plaintiff’s case, the court ruling that the evidence was insufficient to take the case to the jury upon the question of whether the employee Chism was within the course and scope of his employment at the time of the accident.

Pertinent to this appeal is the following principle of law:

“In reviewing a judgment of nonsuit, it must always be borne in mind that a court can grant a nonsuit only when, disregarding conflicting evidence and giving plaintiff’s evidence all the value to which it is legally entitled, including every legitimate inference which may be drawn therefrom, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff if such a verdict were given. [Citations.]”

(Robinson

George,

16 Cal.2d 238, 241-242 [105 P.2d 914].)

Chism (called to testify by plaintiff pursuant to Code Civ. Proc. § 2055) was the only witness at the trial. He related that before he went to work for D & L at the Yuma construction site, he had worked for the same company in Canoga Park, California. He would go to different construction sites and work for various employers, D

Harvey v. D & L Construction Co.

AI Brief

JEFFERSON, J.

More from California Court of Appeal

Related research

AI Brief