Grissim v. A.C. Blumenthal Co., Inc.

[713]

STURTEVANT, J.

On the first day of December, 1922, the plaintiff was walking westerly on the south side of Market Street and was in the act of crossing Third Street. At the same time the defendant Clyde A. Griffin was driving an automobile southerly on Third Street. As he attempted to pass the plaintiff his right front wheel hit the left foot of the plaintiff. Thereafter she commenced an action to recover damages for the injury sustained in the accident.

In her complaint she made Clyde A. Griffin one of the defendants and A. C. Blumenthal & Company, a corporation, another defendant. The corporation was joined on the theory that at the time of the accident Clyde A. Griffin was an employee of the corporation and was engaged in the performance of his duties as such employee. Both defendants answered, a trial was had before the trial court sitting without a jury. The trial court made, findings of fact against both defendants and ordered a judgment entered .thereon. From that judgment the defendant corporation has appealed under section 953a of the Code of Civil Procedure.

Appellant makes the point that it was not liable because the record does not show that at the time of the accident Griffin was in the discharge or performance of any duties within his employment as an employee of the appellant. We think that the point is well made. The evidence presents no conflict on the subject. For some time prior to the above date the appellant was engaged in the real estate" and insurance business and maintained an office in the city of Los Angeles. Mr. Griffin had been a resident of San Francisco, but had been employed by the appellant in its Los Angeles office. For a few weeks prior to the date of the accident he had been residing in Los Angeles, but came to San Francisco for the Thanksgiving holiday and for the purpose of getting his automobile and some other personal property and driving the automobile to Los Angeles. When he had finished his visit and was in the act of driving to Los Angeles the accident occurred. Mr. Griffin testified that at the time he left Los Angeles he had not been directed to transact any piece of business for his employer while he was on the trip. He further testified that while in San Francisco he did not transact any business for his employer and

[714]