Ryan v. Farrell

SEAWELL, J.

Defendant Edwards-Merritt Co., a corporation, appeals from an order granting a new trial on motion of plaintiff following the entry of a judgment of nonsuit in favor of defendant in an action wherein plaintiff sought to recover damages for personal injuries received

[202]

when an automobile in which he was riding was struck and overturned by an automobile operated by defendant J. W. Emmerson Farrell, claimed by plaintiff to be an employee of appellant company. The trial judge granted the non-suit at the close of plaintiff’s evidence on the ground that plaintiff had failed to establish that said J. W. Emmerson Farrell was an employee of appellant for whose negligence it would be liable on the doctrine of

respondent superior.

Thereafter plaintiff’s motion for a new trial was granted by a different judge than the one who had rendered the judgment of nonsuit.

The evidence bearing on the relationship of Farrell, the driver of the automobile, and appellant company is found in the testimony of Farrell. Appellant maintained a sales agency in the city of San Diego for the sale of Chrysler and Maxwell automobiles. Farrell had been connected with said agency as a salesman for about a year at the time of the accident. He received a commission on all sales made and was allowed a drawing account of $150 a month, amounts paid being deducted from commissions on sales made. In calling upon prospective purchasers Farrell used an automobile purchased from appellant on conditional sales contract and not fully paid for, and at the time he struck the automobile in which plaintiff was riding he was returning to San Diego, his place of residence, from Pacific Beach, where he had gone with the purpose of interviewing a prospective purchaser. He testified that salesmen connected with appellant generally used between 100-120 gallons of gasoline a month, 40 gallons of which were furnished by said appellant. If Farrell was the employee of appellant, rather than an independent contractor, and was acting in the course of his employment when he inflicted injuries upon plaintiff, appellant is not relieved of liability by reason of the circumstance that the automobile was not one supplied by it for the use of its employee, but was the private car of said employee used by him in performing service for his employer with the express or implied consent of said employer.