Lufkin v. Patten-Blinn Lumber Co.

[260]

WHITE, J.,

pro tem.

This is an action for damages brought by Ida G. Lufkin against Patten-Blinn Lumber Co., a corporation, and B. W. Dalton, for personal injuries sustained by plaintiff when struck by an automobile driven by defendant Dalton while plaintiff was crossing Main Street in the city Of Los Angeles, at or near the intersection of Seventy-eighth Street, on December 15, 1934. The complaint alleged that at the time of the accident the automobile involved therein, which was owned by defendant lumber company, was being driven by defendant Dalton in the scope of his employment. The answer denied that defendant Dalton was at the time acting as the servant, agent or employee of the defendant lumber company, and further alleged that the driver of the automobile did not have the consent of the defendant lumber company to drive the automobile on the occasion of the accident.

With the issues thus framed, the cause was tried before the court, sitting without a jury. The trial court found that the defendant Dalton was not, at the time of the accident, performing any act as the servant, agent or employee of the defendant lumber company, but that he was driving the automobile with the consent, both express and implied, of his employer. Judgment was thereupon entered against both defendants in the sum of $2,150 and costs, from which judgment defendant Patten-Blinn Lumber Co. prosecutes this appeal, urging a reversal on the single ground that the record is barren of any evidence to support the finding and judgment against appellant lumber company.

The facts involved in the controversy are these: Defendant Dalton was an employee of appellant. The automobile involved in the accident was turned over to the employee and used by him in the course of appellant’s business. Dalton kept the automobile in the garage at his home in South Pasadena without charge to appellant, the latter furnishing the gasoline and oil for the operation of the automobile. At all times since the automobile was delivered into his keeping, Dalton drove the automobile to and from his work. The latter testified that at no time was there any arrangement with appellant pertaining to the use of the automobile outside of working hours and when not engaged in the business of his employer. On the day of the accident Dalton was not on