Helm v. Bagley

[603]

MARKS, J.

Appellant was seriously injured on the eleventh day of September, 1926, in a collision between an automobile being driven by himself and one driven by A. M. Bagley, which occurred at a street intersection in the city of Los Angeles.

At the close of the plaintiff’s case the respondent, Easy Housekeeping Shop, a corporation, made a motion for non-suit upon the ground that the plaintiff has failed to prove that A. M. Bagley was operating the automobile in the course of his employment by respondent, and that the evidence failed to show that Bagley was acting for or on behalf of the Easy Housekeeping Shop or within the scope . of his employment by it. This motion was granted. The sole question to be determined upon this appeal is whether or not appellant’s evidence was sufficient to raise an issue for the jury upon the question of whether or not Bagley was acting within the scope of his i employment in driving the automobile at the time of the injury to appellant, the employment of Bagley by respondent being admitted.

The evidence upon which appellant must rely in order to establish his contention that Bagley was acting for his employer and within the scope of his employment is confined to the testimony of this defendant while a witness for appellant. Bagley testified that he was the district manager of respondent and had charge of several branch stores within his district which comprised certain territory within the city of Los Angeles. The city of Glendale was not included in his territory. He further testified that he received a salary of $250 per month, together with eommis- ' sions on sales made within his district. In addition to his salary and commissions he received $50 per month for the use ■ of his car when on the business of his employer. The stores closed at 6 o’clock in the evening, but Bagley had no regular hours of work and sometimes worked at night.

On the evening of the accident he was proceeding to his home from one of - the branch stores in his district. He stopped to buy some groceries and then continued on his way home, where he intended to eat his dinner. The accident occurred between 5:30 and 5:45 o ’clock in the evening when he was about three blocks from home. At this -time

[604]