Lowmiller v. Monroe, Lyon & Miller, Inc.

NOURSE, J. The plaintiff sued for damages for personal injuries. The cause was tried before a jury and resulted in a verdict in favor of plaintiff for two thousand five hundred dollars. From the judgment following the verdict the defendants have appealed upon typewritten transcripts.

The injuries, which are the basis of the action, were caused while the plaintiff was riding in an automobile operated by the defendant Augustine. The negligence of the driver and the amount of the verdict are not questioned on this appeal, the single issue being whether the defendant Augustine at the time of the accident was an employee of his co-defendant or whether he was acting as an independent contractor. The defendant Monroe, Lyon & Miller, Inc., which will [149]hereafter be referred to as the corporation, held a contract with the owner for the sale of the lots of the Los Altos Country Club properties located near the town of Los Altos in Santa Clara County. In its office in San Francisco the corporation maintained a large corps of salesmen who had been granted licenses as real estate salesmen by the state real estate commissioner upon the approval of this corporation. Among these were Mr. Clark, Mr. Black and Mr. Friedman. A few days prior to August 2, 1925, the plaintiff was handed a card or ticket by a lady standing some place on lower Market Street. This card carried the printed signature of the corporation and purported to be an invitation on the part of the corporation to the holder to ride in “our private automobiles” to the site of the property at Los Altos and to enjoy a noon-day luncheon at the temporary club-house without obligation on the part of the holder. This card directed the holder to telephone the office of the corporation and to ask for Mr. Black. Following the directions upon the card the plaintiff communicated with Mr. Black and arranged to have an automobile call for her at her home in San Francisco on Sunday, August 2, 1925. Mr. Black personally engaged defendant Augustine, a licensed jitney bus driver, to call for the plaintiff and her friends. At the appointed time Augustine took the plaintiff, her daughter, son-in-law and two neighbors down the peninsula to the Los Altos Country Club and there, after having been served with luncheon, they were introduced to Friedman, who presented them with a card showing him to be an employee of the defendant corporation. Friedman then directed Augustine to drive the party over the premises in order to enable him to show them the lots that were for sale. After spending some hours upon the property Augustine started back toward San Francisco with his party, and before reaching the city of Palo Alto and while traveling at an excessive rate of speed, he drove his ear off the highway and into an orchard, causing the injuries complained of.