Reak v. Borsi

STURTEVANT, J.

Walter Reak, while in the employment of George S. Kaar and Eliza M. Howell, as copartners, was so injured in an automobile accident that he died. Having become liable to his heirs under the Workmen’s Compensation Act, the copartners commenced this action, under the provisions of that act, to obtain a judgment in damages against the person causing the accident. The case was tried before the judge of the trial court sitting without a jury, and the plaintiffs were awarded a judgment

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against Emma Borsi and, George Elliott. The defendants have appealed and have brought up the judgment-roll only. Several attacks are made on the findings. Owing to the conclusion which we have reached as to one of the attacks, we will not discuss the others.

By the very nature of the action it became altogether material to ascertain who operated the car that caused the injury, and in what capacity was the operator acting at the time. The plaintiff: alleged “that the defendant Borsi, who was driving the said automobile at said time, was in the employment of the said George Elliott and was driving said automobile for, and on account of, the business or household of the said George Elliott and was engaged in the performance of duties in the due course of such employment.” These allegations were denied by the answers of the defendants. The court found that “the said defendant Borsi was not at the time of the accident in the actual employment of the said defendant Elliott.” The court did not make a finding on the rest of the allegations quoted from the complaint. The court did, however, make several findings which are wholly without the issues and which will be noticed later. Addressing ourselves to the issues made by the pleadings and the findings thereon, the case is one where a material finding is made in favor of a defendant and, nevertheless, the judgment is awarded against him. Such a judgment is not supported by the findings and cannot stand.

Let us now return to the findings which were made but which did not respond to any issue made by the pleadings and consider them together with those findings which were responsive. Paragraph VIII is as follows: “That the said Cadillac automobile at said time was owned by the defendant George Elliott, and the defendant Emma Borsi was driving the same with the knowledge and consent of said defendant Elliott and also for and on account of the business of the said Elliott in connection with a garage which was then being operated in the said city of Bakersfield by him. Although the said defendant Borsi was not at the time of the said accident in the actual employment of the said defendant Elliott, yet she had shortly prior thereto been engaged in his employment, and during said time, and also at times immediately prior to the said accident, she