Martinelli v. Bond

HAVEN, J.

Plaintiff suffered personal injuries caused by a collision between a motorcycle which he was riding and an automobile driven by the defendant Noonan and owned by his employer, the defendant Bond. In this action, brought to recover damages for such injuries, a verdict was rendered in favor of plaintiff against both defendants. From the judgment following such verdict the defendants prosecute separate appeals. This appeal is by the defendant Bond.

The appellant contends, first, that any judgment against him was erroneous, for the reason that the" automobile was being used at the time of the accident by the defendant Noonan for a pleasure trip, and was not then engaged in the transaction of his employer’s business; and, secondly, that the evidence shows that the injuries complained of were caused solely by the negligence of plaintiff and not by or through any carelessness or negligence on the part of either defendant. Under the conclusions that have been reached, it will be necessary on this appeal to consider the first contention only.

The automobile which collided with plaintiff’s motorcycle was purchased by the defendant Bond for use in the business transacted by him under the name of Bond Bros. & Co. The defendant Noonan was in the employ of the defendant Bond as manager of such business. The automobile when purchased was turned over by Bond to Noonan for

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the latter’s exclusive use, and was kept by him at a garage at or near his home, at the expense of the appellant Bond. Noonan never informed appellant where the automobile was kept, nor did the latter make any inquiry with regard thereto. The defendant Noonan had entire charge of the automobile, using it as he desired without restriction. Appellant testified that he had instructed Noonan that said automobile should not be used by him for pleasure purposes. Noonan stated that he did not remember such instructions. The collision which caused the injuries to plaintiff occurred on Sunday, December 23, 1917, between 6 and 7 o’clock in the evening, at or near the junction of San Jose Avenue and Mission Street, in San Francisco. Upon that day the defendant Noonan had taken two friends for a pleasure outing to Camp Fremont. He testified that the trip was made “for the purpose of taking an outing”; and that “when I was using it [the automobile] on this Sunday, when I "was out for a ride, it was not being used for any purpose connected with the business of Mr. Bond.” The appellant had no knowledge of the use of the automobile for the purpose stated upon the day of the accident, nor for several days thereafter.