Mathe v. White Auto Co.

GATES, J.,

pro

tem.

The plaintiff commenced an action against defendants to recover judgment for damages by reason of injuries to his automobile alleged to have been occasioned by a collision of his car with appellant’s automobile, which was being driven by the defendant Mader in a careless and negligent manner. Defendants answered, and appellant corporation filed a cross-complaint -claiming that the collision was caused by the negligence of respondent. Trial was had in the lower court, sitting with a jury. The jury returned a verdict in favor of plaintiff in the sum of $650 and costs, and judgment was entered thereon. Defendants moved for a new trial on all of the statutory grounds and

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the motion was denied. Appellant appeals from the judgment.

Six assignments of error are set forth in appellant’s brief. All of its claims may be condensed into one major proposition—defendant Mader’s relationship to appellant at the time of his negligent operation of appellant’s automobile. Amplifying appellant’s claims somewhat, these questions present themselves for solution: (1) Must a complaint in this class of cases allege that a servant, at the time of the accident, was acting within the scope of his employment or was at such time and place acting in furtherance of his employer’s business? (2) Must the evidence, in order to sustain a judgment, so show?

Because of the emphasis placed by appellant upon the above propositions we will quote the particular allegations of the complaint bearing upon this point: “That at all times herein mentioned the defendant, White Auto Co., was the owner of a Cadillac touring car, bearing state license No. D-34816.” “That

at all times herein mentioned the defendant, Robert Mader, was an employee of the defendant, White Auto Go.,

and was the driver of said Cadillac touring car.” (Italics ours.) “That said Cadillac automobile

owned, controlled and operated by the defendants

herein, was operated carelessly. ...” (Italics ours.) ‘ ‘ That' solely by reason of the aforesaid carelessness . . . of defendants. ...” “That all of said damage to plaintiff was caused by the negligent, reckless and careless acts of the defendants. ...”