Brown v. Montgomery Ward Co., Inc.

STURTEVANT, J.

Mrs. M. A. Brown was struck by an automobile which was being driven by one of the employees of Montgomery Ward & Co. She died of the injuries sustained. Her heirs sued for damages. Prom a judgment in favor of the plaintiffs the defendants have appealed.

The defendants claim that the evidence did not show that at the time of the accident the defendant Yinje, who was driving the automobile, was acting within the scope and course of his employment. Mr. Yinje is an accountant; he owns his automobile and resides in Berkeley. At the time of the accident he was a traveling auditor for the defendant Montgomery Ward & Co. That company maintains a store in Oakland and a chain of stores located in different parts of the state. The head auditor is attached to the Oakland store. He has an assistant. Besides that assistant the company has two or more traveling auditors. Prom time to time the head auditor and the traveling auditor, as the witnesses testified, “lay out a

program

of audits for a trip.” That program includes certain designated stores and a certain designated period for the trip. Mr. Yinje was paid a certain sum per week and he was allowed to travel in his own automobile and the company paid him nine cents per mile. That mileage was computed as follows: When he left his house the mileage was computed from the house to the first store, which was at Merced; thence to Tulare; thence to

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Hanford; thence to Salinas, and thence home. The work laid down in the program had to be done within the period therein stated; otherwise, Mr. Vinje commenced work, continued work, or stopped work at such time or times as he chose, worked or traveled on such hours as he chose, and was not under any order or orders in any respect. When auditing a store he usually worked during the working hours of that particular store, but sometimes took work to his hotel. When traveling he usually traveled during working hours, but sometimes started a trip earlier in the day or finished later in the day. As each store was audited a report was made out. One copy was mailed to the Chicago office and one to the Oakland office.

On Monday, about ten days prior to the accident, Mr. Vinje left his home to audit the stores located at Merced, Tulare, Hanford and Salinas. He traveled in his automobile and carried with him a typewriter and some books of instruction which were the property of Montgomery Ward & Co. At about 3 o’clock on Friday, July 29, 1928, he had finished auditing the store at Salinas, which was the last store on his program, and had written out his reports. He put the typewriter, books of instruction and Salinas reports in his automobile and started toward his home in Berkeley. As he traveled north he passed by the Oakland store, but did not stop. It was then 7:45 P. M. and the store had closed at 5 P. M. He continued on his way to his home in Berkeley and returned to the store Monday morning. While traveling between the Oakland store and his home the accident happened.