Phipps v. Shacklett

ARCHBALD, J.,

pro

tem.

From a judgment in favor of plaintiffs, defendants have appealed.

The evidence shows that defendant Shacklett was president and general manager of defendant Calmin Mortgage Corporation, and that after driving a car belonging to the corporation to Riverside on business of the latter, he proceeded on his own business, driving the same car; that when about 36 miles south of the town of Indio he attempted to pass a truck with trailer attached, at a place where the highway in front of said truck was not visible for a sufficient distance to enable Mm to pass before meeting the oncoming car of plaintiffs. The visibility of the highway was obstructed by a dip therein 750 feet in length and 35 feet deep, which obscured plaintiffs’ approach. There is testimony that plaintiffs’ car was not exceeding a speed of 30 or 35 miles per hour and that defendants’ car was not exceeding 40 miles. When plaintiff Phipps’ car came out of the “dip” he saw the track about 100 feet away from him, and traveled about 25 feet when he saw defendants’ car in front of him. He turned Ms machine to the right and ran off the pavement in an attempt to avoid a collision, and in the meantime defendants’ car was turned to the left, running into the side of plaintiffs’ car and causing the damage claimed. The court found that the accident was proximately caused by the negligence of defendant Shacklett, that such defendant was driving the car with the knowledge and consent of its owner, Calmin Mortgage Corporation, and that the negligence of the driver “is imputed to the owner”. It was further found that plaintiffs were not guilty of any negligence contributing to the happening of the accident, but that the sole cause thereof was the negligence of defendant Shacklett.

Appellants urge: (1) That as Shacklett was not driving the car while engaged in the business of the corporation the latter is not responsible; (2) that as a matter of law Shacklett was not guilty of negligence, and (3) that under the

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undisputed evidence plaintiffs were guilty of contributory negligence.

(1) We think it was a fair conclusion from the evidence that the car was furnished by the corporation to its president for his own use, whether on personal or comp an v business. Appellant corporation urges that section