Barber v. Foxworthy

DORAN, J. In a personal injury action, plaintiff recovered a judgment for $4,200 against defendant Foxworthy, it being also decreed that plaintiff take nothing from defendant American Building Maintenance Co., a partnership (sued as One Company, a corporation) by whom said defendant Foxworthy was employed.

This appeal is prosecuted by plaintiff Barber and defendant Foxworthy from that part of said judgment which exonerated the partnership from liability. It is here claimed that the evidence conclusively establishes the fact that, at the time oi the accident, appellant Foxworthy was acting within the course and scope of his employment by respondent partnership, hence the court’s finding to the contrary is erroneous as a matter of law.

The record discloses that at 7 :30 p.m. of February 4, 1943, appellant Barber was operating a Good Humor ice cream truck easterly along the south side of 11th Street in the city of Long Beach; that he was hailed by a customer in the middle of the block between Hoffman and Walnut Streets and brought his truck to a stop approximately eighteen inches from the southerly curb of 11th Street and parallel thereto. The truck was painted white with a blue trim, the headlights conforming to the dim-out regulations then in effect, and the rear box of the truck was lighted on each side and on the rear with side lights which shone downward upon advertising signs. Appellant Barber alighted from the truck and was standing at the rear thereof waiting for his customer' when appellant Fox-worthy, driving his automobile in a westerly direction on the southerly side of 11th Street, collided with the left front end of the ice cream truck. The force of the collision propelled the truck backward striking appellant Barber, causing the injuries alleged. Appellant Foxworthy, the owner of the Plymouth car involved in the collision, was employed by respon[397]dent American Building Maintenance Company, a janitorial and window cleaning service, with an office in Long Beach. At the time in question, there was a ladder on the top of Fox-worthy’s automobile attached to a mechanical carriage anchored thereto by rubber suction cups, and on the inside of the car was certain window cleaning equipment, all of which was owned by the respondent partnership and had been consigned to Foxworthy for use by said Foxworthy.

The facts as to Foxworthy’s connection with the maintenance company are without dispute. Foxworthy testified as follows:

“I was living out on Gardena Street, just oft of Anaheim.