Hirst v. Morris & Co. (1919) · DecisionDepot

Hirst v. Morris & Co.

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Dec 31, 1919 No. Civ. No. 3193.Published

Before: Langdon

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Holding. The court held that the employer, Morris & Company, was not liable for the employee's negligence because the employee was not acting within the scope of his employment at the time of the accident, but affirmed the judgment against the employee, Schneider, finding sufficient evidence of his negligence.

Issues

Whether the defendant employee was acting within the scope of his employment at the time of the accident so as to impute liability to his employer.
Whether the evidence was sufficient to support the jury's verdict regarding the defendant employee's negligence and the plaintiff's lack of contributory negligence.

Disposition. reversed in part and affirmed in part

Quotations verified verbatim against the opinion

“The verdict of the jury against the defendant Schneider is sustained by the evidence.”

Synopsis

APPEAL from a judgment of the Superior Court of Los Angeles County. Louis W. Meyers, Judge. Reversed in part; affirmed in part.

The facts are stated in the opinion of the court.

[359]

LANGDON, P. J.

This is an appeal by the defendants from a judgment against them for three thousand dollars in an action for personal injuries sustained by plaintiff when the bicycle he was riding collided with an automobile being driven in the city of Los Angeles by the defendant Schneider.

[1]

Morris & Company was joined as a defendant upon the theory that Schneider was in its employ at the time of the accident and was in the course of his employment when the accident occurred. We shall consider first the contention of appellant Morris & Company that the negligence of Schneider, if any, cannot be imputed to it, because Schneider at the time of the accident, was not acting within the scope of his employment. The evidence upon this question is uncontradicted. It consists in a contract between the defendants, covering the ownership of the automobile involved in the case and the employment of Schneider by Morris & Company, together with the testimony of Schneider himself with regard to his employment and duties. Prom the written contract between the defendants, introduced in evidence by the plaintiff, it appears that the automobile which was being driven by Schneider had been purchased by him from his employer; fifty dollars cash had been paid as the initial payment and the balance was to be paid in installments. Schneider testified that the car was about half paid for at the time of the accident. By his contract, Schneider agreed to use the car in the business of the company, in advertising and selling its products, and the company agreed to pay Schneider a specified sum per week for the use of the ear, Schneider to pay all expenses of operation, repairs, etc., and the company to pay for insurance upon the car. The employee was required to take out and pay for his own license for operating the automobile, and he testified that the license had been taken out in his name. The employee kept the car in a garage at his own home. He testified that the car was his and considered as his; that he used it just as though it had been completely paid for; that the company never dictated to him about the ear. Upon the question of the scope of his duties, he testified that he was employed to sell the products of the company and to attend to advertising the same; that the car had been used at times to carry samples

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With respect to the judgment against the defendant Schneider, it becomes necessary for us to discuss the further point urged by appellants that the evidence is insufficient to sustain the verdict, in that it shows no negligence upon the part of Schneider, and does disclose contributory negligence upon the part of the plaintiff. Because of the various elements that entered into the traffic situation at the place of the accident,—the relative placement of various objects on the street about which the testimony is in dispute, and the unusual situation presented by reason of the configuration of the roadway at this place, —it is extremely difficult to discuss the testimony in detail without reference to a map or chart. We have very carefully studied the maps and charts in evidence, and applied the testimony of the various witnesses thereto. Upon several vital matters which would enter into the determination of the negligence of the defendant Schneider, such as his rate of speed at the time of the accident; his position to the east of the center of the roadway (he was going south, having just turned to his right from Sunset Boulevard into Broadway, just in front of the approach to the Broadway tunnel), there was conflicting evidence. It is sufficient to say that there is evidence in 'the record from which the jury might reasonably have believed that said defendant was going at the rate of twenty-five miles an hour. A city ordinance was introduced in evidence permitting a speed of only twelve miles an hour at this point. There is evidence in the record from which the jury might have believed that said defendant was to the east of the center of the street, having made' a broad turn from Sunset Boulevard. [2] There is evidence from which the jury might have believed that at the time said defendant first appeared to the view of the plaintiff, he was coming in a southeasterly direction, having not as yet straightened his machine after making a very broad curve-; that at this time he was but a short distance from the plaintiff and was “rushing at him” directly, and that the plaintiff had no means of escape. If the jury believed this from the evidence, the boy thus confronted with a sudden danger cannot be held responsible for turning suddenly to his left in an attempt

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Synopsis

LANGDON, P. J.

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