Barty v. Collins

TUTTLE, J., Pro Tem., Delivered the Opinion of the Court.

This is an action to recover damages alleged to have been suffered by plaintiff on account of personal injuries received in an automobile collision. The jury returned a verdict against defendant Collins in the sum of $15,000. Upon motion of defendant corporation, the court directed a verdict in its favor, and from the verdict so rendered plaintiff prosecutes this appeal.

On the evening of July 11, 1928, defendant Collins, while in the general employment of defendant corporation, was

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driving his own automobile along the state highway, near the city of Fairfield, when a collision occurred between his car and the car driven by plaintiff. The injuries complained of arose out of this collision.

The motion for a directed verdict was granted upon the sole ground that there was no proof that Collins was acting within the scope of his employment at the time of the collision, and this is the only question presented upon this appeal.

In reviewing an order directing a verdict the appellate court will apply rules analogous to those which govern in reviewing an order granting a nonsuit. (24 Cal. Jur., p. 913.) Accordingly, it is the duty of the court here to view the evidence adduced in support of plaintiff’s case, and every presumption and inference that may be fairly deduced therefrom, in the light most favorable to plaintiff.

(McKay

v.

McKay,

184 Cal. 742 [195 Pac. 385].) Furthermore, evidence, whether admitted erroneously or not, if relevant to the issues joined, must be given by the court the benefit of full probative strength, and any question arising from the fact of variation between the evidence of the witnesses cannot be raised or considered.

(Kleist

v.

Priem,

51 Cal. App. 32, [196 Pac. 72].) “The question of the liability of the master for the acts of his servant depends altogether upon the fact of whether or not the servant was acting within the scope of his employment. The terms ‘course of employment’ and ‘scope of authority’ are not susceptible of accurate definition. What acts are within the scope of employment can be determined by no fixed rule, the authority from the master being gathered from surrounding circumstances.”