Adams v. Tuxedo Land Co.

THE COURT.

Plaintiff began this action to recover damages for injuries sustained in an automobile collision alleged to have been due to the negligence of John Stange, an employee of the Tuxedo Land Company. The defendants had judgment and the plaintiff appeals.

Only two questions are presented for consideration: First: Was the defendant John Stange guilty of negligence, proximately causing the injury? And, second: Was he, at the time of the collision, acting within the scope of his employment as a laborer of the Tuxedo Land Company?

The appellant urges an additional point for consideration, to wit: That the court erred in overruling plain

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tiff’s demurrer to the cross-complaint by John Stange, wherein judgment was asked against the plaintiff in the sum of $57. As no judgment for damages was awarded the defendant Stange, whether the court erred in so ruling is wholly immaterial.

The transcript shows that the Tuxedo Land Company is a corporation and the owner of a subdivision within the corporate limits of the city of Stockton. Its business was the sale of lots, laying of sidewalks, water pipes, setting out trees, and other work in connection with improving the subdivision known as Tuxedo Park. John Stange was an employee of the company. His duties were those of a laborer, and his work, principally, was laying sidewalks, planting trees, laying pipes, etc. The Tuxedo Land Company owned and maintained a pumping plant in the subdivision. At this place they had a storehouse. The defendant Stange drove to. his work each morning in a Ford car owned by himself. The testimony shows that he would go to the storehouse, get such tools as he needed, put them in his car and drive to the place where the work was to be done. That about 12 o’clock he would quit his work, get into his Ford car and drive to the pumping plant and there eat his lunch, after which, at about 1 o’clock, he would return to his work. The company owned and furnished a wheelbarrow for the transportation of tools, etc., but as a matter of convenience, the defendant Stange usually transported such tools in his Ford car. At the time of the accident, which occurred during the noon hour, the defendant Stange was driving in his own Ford car from his work to the pumping plant for the purpose of eating his lunch. The testimony shows that at that time he was not transacting any business for the company. He was not going to the pumping plant on any mission for the company, nor was he transporting any property belonging to the company, but was going there to eat Ms own lunch, as herein stated. At the time of the' collision he was driving south on a cem tain street in Tuxedo Park known as and called Alston Way, while the plaintiff, at the time of the collision was driving easterly on North. Tuxedo Avenue. The defendant was accompanied by a fellow workman named John Con-don,