Coleng v. Ramsdell

BARNARD, P. J.

This is an action for damages for personal injuries. The plaintiff alleged that he was struck by an automobile owned and driven by the defendant Ramsdell, who was alleged to have been the agent and employee of the defendant Cowen. A jury returned a verdict in favor of the plaintiff and against both defendants and the defendant Cowen has appealed.

The appellant was a dealer in Ford automobiles in San Bernardino with a branch place of business in Barstow. Rams-dell, who was an auditor, had performed certain auditing services for Cowen for some eight years prior to 1934. For approximately one year, including most of 1934, he acted as office manager for the appellant in San Bernardino at a regular salary, during which time he did no auditing work. After about a year in that capacity he decided to return to his independent audit practice and agreed with the appellant that he would continue the auditing service which he had rendered prior to the time he worked as office manager. About that time and on January 8, 1935, he drew up and signed an agreement which was accepted by Cowen, reading as follows:

“In accordance with our conversation I propose to audit San Bernardino books monthly beginning November at the former charge of $25.00 per month, spending as much time as necessary to give you satisfactory results.

“I also propose to keep and audit Barstow books as at present for a monthly charge of $35.00 per month. Any additional branch setups which may added to the organization in the future would be handled by me in the same manner as Barstow except possibly a small variation in the monthly charge to compensate for difference in size.”

Cowen employed another office manager and the new arrangement was in effect at the time of the accident, on Septem

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her 14, 1935. Ramsdell took up his former audit practice, auditing books for other firms as well as the appellant. With respect to the San Bernardino business of the appellant Rams-dell made monthly “test” audits or “checks” and occasionally made special reports, compiled lists of accounts receivable, and “took off this or that” as requested by the appellant. Similar auditing work was done in connection with the Bar-stow office and, in addition, certain reports were mailed from Barstow to Ramsdell’s home in San Bernardino. At his own convenience he would post these into a set of books which he kept at his home. All of this work was done by Ramsdell at such times as he chose either at home, at the San Bernárdino office or at the Barstow office, and sometimes on evenings, Sundays or holidays. There was no stated time when he should do the work although he was supposed to get out a report for the appellant every thirty days, usually between the 10th and the 15th of the month. The appellant’s work usually had precedence over other work during that time and if the report was not out by the 15th he continued until the report was completed. On several occasions the appellant went, to Rams-dell’s home in the evening and asked him to make out a special report, which Ramsdell usually did. On some occasions when such a report was asked for Ramsdell informed the appellant that he was unable to do the work for a few days, but would do so as soon as he could. At times the appellant asked Ramsdell to go to Barstow to make certain reports and at times when Ramsdell was at Barstow the appellant asked him to come to San Bernardino to report on something there. By mutual understanding the appellant furnished Ramsdell gasoline for trips to Barstow and paid his hotel expenses while there. Occasionally it was necessary for Ramsdell to go to Barstow to get some information in order to do his auditing and usually he himself decided when he should go. Ramsdellwould come in at various times, whenever it was convenient to him, to make his audits and would work as long or as short a time as he pleased.