McCammon v. Edmunds

California Court of Appeal May 7, 1931 No. Docket No. 6719.Published

Before: Archbald

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Holding. An employer is not vicariously liable for an employee's unauthorized use of a company vehicle occurring outside of working hours and contrary to explicit instructions. The court held that the employee was not acting within the scope of his employment at the time of the accident.

Issues

Whether an employee was acting within the scope of his employment when using his employer's vehicle outside of working hours for unauthorized repairs.
Whether evidence regarding the vehicle's condition was admissible to establish employer liability in the absence of an agency relationship.

Disposition. reversed

Quotations verified verbatim against the opinion

“the test of liability in all cases depends upon the question whether the injury was committed by the authority of the master, expressly conferred or fairly implied from the nature of the employment and the duties incident to it”

“the act complained of occurred several hours after the employee went off duty. He was not on duty and faced with an emergency, but off duty and no emergency existed”

“the fact of the nonexistence of the relationship of master and servant at the time of the accident, as well as the fact that the act done was not within the scope of the latter’s employment, is established by the uncontradicted evidence”

ARCHBALD, J.,

pro tem.

The defendant Edmunds conducted a dental laboratory in the city of Los Angeles, where he manufactured false teeth, plates, etc., for dentists. Defendant Frederick W. Miner, nineteen years of age, had been employed by him for about a month to make deliveries on a motorcycle owned by Edmunds at the time of the accident which is the subject of this action. The father and mother of Miner, who signed their son’s application for an operator’s license, were also made defendants. The complaint prays damages for injuries alleged to have been due to the negligence of the defendant Frederick W. Miner while driving appellant’s motorcycle. From a judgment in favor of plaintiff and against all defendants the defendant Edmunds has appealed.

The evidence shows that Miner was permitted by his employer to keep the motorcycle at his home and to ride it

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to and from work. On the day of the accident he made his last delivery at about 5 P. M. and went home, taking dinner with his family and Russell Holt, a friend. Young Holt had left his Ford car to be repaired at a garage some blocks away, and about 7:50 P. M. the two boys, on the motorcycle, went to get the Ford, after which they started for an oil station at Alvarado and Temple Streets, each driving his respective vehicle. At such oil station Miner testified that he intended to change the front tire of his motorcycle to the rear wheel, because “the rear tire was worn down smooth”. On the way the accident complained of happened.

The evidence shows without question that young Miner’s hours of employment were from 8 A. M. to 5 P. M., with one hour off for lunch. It also shows without contradiction that appellant had instructed the boy that if anything went wrong with the machine to take it to the Harley Davidson Company to have it repaired. Defendant Edmunds testified in that regard: “Well, I would like to give you, in answer to that, the instructions I issued to the boy. It was very thoroughly understood that if I let the boy take the car home after the last delivery and use it to go to and from work, that he was not to use it after he got home. Q. For no other purpose? A. For no purposes whatever. Q. What were your instructions to the boy as to taking care of tires or where he should have them taken care of? A. At the Harley Davidson’s, unless he got caught out with a puncture, and he was to go to the nearest place, if there was one handy.” That evidence is not contradicted. Young Miner testified, also without contradiction. “Q. Just a moment. You testified, did you not, several times, that your-repairs were to be made during business hours ? 1 A. Yes, sir, when the repairs were to be made. Q. (By Mr. Anderson.) Did you testify on your direct examination when I called you first that there was no particular time set for having repairs, no particular hours of the day set for repairs? A. Well there was—it would be from eight to five.” The witness also testified that he used to clean and grease the machine at his home, but it does not appear that he was instructed so to do. Over the objection of appellant the boy was permitted to testify further that the motorcycle had a tendency to skid when the brakes were applied, on

McCammon v. Edmunds

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ARCHBALD, J.,

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