Weber v. Wiley B. Allen Co.

STURTBYANT, J.

The plaintiff commenced an action against the defendants to recover damages for injuries sustained in an automobile accident, judgment went for the plaintiff and Wiley B. Allen Company, a corporation, defendant, has appealed.

During the period of time involved in this litigation the plaintiff was engaged in soliciting life insurance for the New York Life Insurance Company. The Wiley B. Allen Company had a place of business at San Jose, where it was engaged in selling musical instruments, and the defendant W. Austin was the resident manager at San Jose in charge of the business of the defendant corporation. The defendant J. P. Bertlow was the owner of and operating an automobile on the highway leading from Gilroy to San Jose, and, as contended by the plaintiff, he was guilty of such negligence in the operation of his machine that he was partly responsible for the accident.

On June 25, 1921, the plaintiff stated to Mr. Austin that he knew of a man residing in the neighborhood of Morgan Hill, a small town in Santa Clara County, twenty miles south of San Jose, who would be interested in purchasing a piano. Thereupon the plaintiff and Mr. Austin arranged for a call on the prospective purchaser. Some time during that evening, variously recited as being between 7:30 and 9 P. M., the plaintiff and Mr. Austin took the automobile belonging to the defendant corporation and started on their trip. Miss Koenig, a friend of the plaintiff, accompanied them. The party drove down the highway to Morgan Hill and there they turned off on a mountain road and traveled that road a distance of five miles or thereabouts, and made three separate calls for the purpose of locating the prospective purchaser. That purchaser, the plaintiff said, was a Portuguese, but he did not recall the name. Neither did he recall the names of the persons on whom he called. At the last place at which the party called they were informed that the prospective purchaser lived about four miles to the

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south. Thereupon the party stoppped their attempt that night to locate the purchaser. Later the party returned up the highway to a place where soft drinks and sandwiches were on sale, and which is referred to in the record as Kinkade’s. At that place Austin separated from the plaintiff and his companion, and all of them remained at Kinkade’s some time—the exact length of time being differently stated by the witnesses at from thirty minutes, or forty-five minutes, or even a longer period. The defendant Austin testified that he had two drinks of wine, and the plaintiff testified that he had no drinks but did have some sandwiches. The defendant Austin testified that a part of his purpose in stopping at Kinkade’s was to interview Kinkade on the subject of purchasing a musical instrument. While the party was still at Kinkade’s the automobile of J. P. Bertlow came up. As it came to a stop Miss Koenig ran out and asked Mr. Bertlow if he was going to San Jose and if he would take her, as she was in a hurry to get there. He asked her in reply how she got out there, and when he learned that she had gone out in another automobile he declined to interfere but at once drove on up the highway. As he proceeded up the highway he was traveling at thirty-five miles, or perhaps thirty-six or thirty-seven miles per hour, and his machine was traversing the middle line of the highway. When he was so traveling the automobile driven by the defendant Austin approached from the rear and attempted to pass on the left, and as it did so it was partly off of the highway, and in the attempt to right itself it swerved and turned over. In that accident the plaintiff Weber suffered the injuries which are the subject matter of this suit.