Reider v. Aqueduct Construction Co.

DORAN, J. Plaintiff J. J. Reider appealed from a judg ment in favor of defendant Aqueduct Construction Company, a corporation, entered on a directed verdict, and also from the judgment in plaintiff’s favor as against defendant J. J. Ward, in an action to recover damages for personal injuries sustained through the alleged negligent operation of a motor vehicle by defendant Ward.

[91]At the time of the accident defendant Aqueduct Construction Company (hereinafter referred to as defendant construction company) was engaged in the building of an aqueduct, which was a part of the Metropolitan Water District project, near Desert Center, California. Defendant Ward was employed by the company as a tractor operator.

The-accident involved herein occurred at about 3 o’clock in the afternoon on October 20, 1936, at which time Reider was struck by an automobile driven by defendant Ward.

At the trial, upon the theory that at the time of the accident Ward was not acting within the course and scope of his employment, the court granted the motion of defendant construction company for a directed verdict. A verdict was returned in favor of plaintiff Reider and against Ward, but in favor of defendant construction company, as directed.

Originally, the sole question on appeal as conceded by both appellant and respondent construction company was whether, as a matter of law, defendant Ward at the time of the accident was acting within the scope of his employment. Appellant’s brief was filed on February 28, 1938. Respondent Aqueduct Construction Company’s brief was filed on March 28, 1938. On March 23, 1938, appellant Reider died. Thereafter Irene E. Reider, administratrix of the estate of appellant Reider, was duly substituted as plaintiff in the superior court and as plaintiff and appellant in the District Court of Appeal.

Respondent construction company moves to dismiss the appeal on the ground that the action abated upon the death of the plaintiff. Appellant, on the other hand, submits the following in connection with a request for a nunc pro tunc order: “Where, in an action for personal injuries against an employee and an employer jointly, the uncontradicted evidence shows that the employee was acting within the course of his employment as a matter of law, and the trial court erroneously directs a verdict in favor of the employer, and the jury thereafter renders a monetary verdict against the employee; upon appeal by plaintiff from the decision, does not the appellate court have inherent power, after death of plaintiff pending the decision on appeal, to reverse the judgment and order the trial court to enter a judgment nunc pro tunc in favor of plaintiff and against the employer in the exact amount that was rendered against the employee?”