Maupin v. Solomon

KERRIGAN, J.

This is an appeal by the corporation defendant from a judgment in favor of plaintiff in an action for damages arising through the destruction of an automobile belonging to plaintiff as a result of a collision

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alleged to have been due to the negligence of the defendants.

At the time of- the collision the defendant Solomon was in the employ of his codefendant, M. A. Gunst

& Go.,

as a traveling salesman, with headquarters in the city of Fresno, and whose duties embraced the solicitation of customers for the purpose of selling the merchandise of his employer. To facilitate the discharge of that duty he was furnished by his employer with an automobile, which he was instructed to use only in the course of his employment. In, the forenoon of February 22, 1917, being a public holiday, Solomon called on several customers, but in the afternoon he transacted no business, spending most of that time at the Elks Club. In the early part of the evening, in pursuit of his personal recreation, he took two of his friends for a ride in the aforesaid automobile, intending thereafter to dine in a public café in Fresno. During this ride, and while the automobile was being, driven by Solomon at a high rate of speed in said city, it collided with plaintiff’s ear, which was standing near or alongside of a street sidewalk with its tail-light burning. Plaintiff’s car was practically demolished by the force of the collision.

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It is not denied, as testified to by the witnesses introduced by appellant, and corroborated by the surrounding circumstances, that at the time of the accident Solomon was engaged in a pursuit wholly his own, and that such use of the automobile was without the consent of and against the instructions of the appellant. Nor is it disputed that the accident was the result of the negligence of Solomon. But plaintiff’s contention in support of the judgment is that' when he proved that the automobile belonged to the appellant and was being operated by its employee - at the time of the collision, a" presumption arose that the employee was acting within the scope of his employment, and that such presumption remained in the case in spite of the clear, positive, and uncontradicted evidence that Solomon was not so acting, and created a substantial conflict in the evidence, with the result that the action of the court in denying a motion for a new trial must be sustained upon appeal.