Lee v. Nathan

YOUNG, J.,

pro tem.

This is an appeal from a judgment entered in favor of plaintiff against the defendant Charles P. Nathan and his codefendant Leland R. Apperson in an action to recover for the alleged damage to plaintiff’s automobile as the result of a collision between plaintiff’s said automobile and a Packard automobile owned by defendant Nathan, and driven by his codefendant Apperson. The defendant Nathan appeals, and the only point urged by him for a reversal of the judgment is that the evidence is insufficient to support a certain finding of the trial court to the effect that at the time of the collision the defendant Apperson was driving the Packard automobile as the agent of the defendant Charles P. Nathan. The testimony touching this phase of the case was given by appellant, Apperson and one George Sellinger, Jr., all called as witnesses by plaintiff.

It appears from the evidence that Apperson had been in the employ of appellant as receiving clerk in appellant’s department store in Sacramento for many years. In addition to this employment, for some three or four years prior to the time of the collision, Apperson had also been driving appellant’s automobile when called upon by him to do so. Appellant also looked to Apperson to see that the automobile was kept in running order. The automobile was kept in a garage on “I” Street, between Fifth and Sixth Streets.

[113]

Appellant did not himself drive the car, nor did any member of his family. It was quite usual for Apperson to drive appellant to his home at 2027 “F” Street to lunch at noon, and also to dinner in the evening, and frequently, especially in pleasant weather, Apperson would, after getting his evening meal downtown or at his own home, return to appellant’s home and take him driving aronnd town for an hour or so. He also frequently drove him to club meetings in the evening, and to the theater. On several occasions when out late at night in the car after attending club meeting or the theater, appellant directed Apperson to drive by the garage where the car was kept and get one of the employees of the garage to go with them to take the car back to the garage after first taking appellant home, and then taking Apperson to his home at 3019 Fifth Avenue, in Oak Park, in the south part of the city of Sacramento. All the witnesses agree that this was done only when appellant was out as late as 10:30 or 11 o’clock at night. On other occasions when out riding in the evening, Apperson would, after taking appellant home, go to the garage and leave the car, or would himself ask one of the boys at the garage to go home with him and bring the ear back to the garage. Appellant testified that he did not know of Apperson getting the boy on his own account to go home with him, and that he had never given him permission to do so. There is no testimony contrary to this statement.