Hanchett v. Wiseley

MARKS, J.

On November 6, 1926, the plaintiffs, who were husband and wife, were riding in an automobile on the highway between San Diego, California, and Tijuana, Mexico. At a point on the highway, approximately ten miles southerly from the city of San Diego, their car came into collision with one driven by Conway Wiseley, and Elizabeth C. Hanchett was injured. A trial by jury was waived and the trial court entered judgment against both defendants. There is no question of Wiseley’s negligence and that respondents are entitled to judgment against him.

The trial court found, in its finding number three, “That at the time of said collision said Conway Wiseley was employed by defendant, Reo Motor Car Company of California,

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a corporation, as its servant and employee, and at the time of the collision, hereinbefore mentioned, said Conway Wiseley was operating and driving and controlling the said automobile in which he was riding for said defendant, Reo Motor Car Company of California, a corporation, and was acting within the scope of his employment by said Reo Motor Car Company, a corporation, at the time of said collision and as the servant and employee of said defendant, Reo Motor Car Company of California, a corporation.” Whether this finding is supported by the evidence is the sole question on this appeal.

There is no conflict in the evidence which must be relied upon to support this finding, if it is supported. The evidence shows that Wiseley was employed by the appellant as a salesman to sell new and used automobiles. His hours of employment were from 8 o’clock in the morning until 6 o’clock in the evening of each working day. Appellant furnished him an automobile to be used as a demonstrator in assisting him in making sales to prospective customers. Wiseley was given no particular instructions as to the manner in which he should use this demonstrator except that it must be returned to appellant at 6 o’clock each evening, and that he must not take it to Tijuana without special permission from his employer. He found his own prospects and made his own sales, receiving a commission for his services.

On the day of the accident Wiseley drove to the place of business of Franklin Shields, who had the agency in San Diego for the distribution of a make of automobile other than that sold by appellant. Wiseley and Shields decided to go to Tijuana to get a drink. This was the only purpose of the trip, which they made in the demonstrator car belonging to appellant. After reaching Tijuana, Wiseley proceeded to get drunk, and about 5 o’clock in the evening started back to San Diego alone in the automobile. On the return trip he drove the car into the automobile of respondents, causing the injuries which formed the basis of their suit.