Summary
hearing granted by the Supreme Court, 8 Cal. (2d) 532 [ 66 P.2d 651]
Summary of this case from Carnes v. Pacific Gas & Electric Co.Opinion
Rehearing Denied July 27, 1936.
Hearing Granted by Supreme Court Aug. 27, 1936.
Appeal from Superior Court, Los Angeles County; Caryl M. Sheldon, Judge.
Suit by Leo D. Peccolo against Bureau of Water and Power, city of Los Angeles, Department of Water and Power of city of Los Angeles, and others. From a judgment for plaintiff, second named and third named defendants appeal.
Modified and affirmed.
COUNSEL
Ray L. Chesebro, City Atty., J. M. Stevens, Asst. City Atty., and Kenneth K. Scott, Deputy City Atty., all of Los Angeles, for appellant Department of Water and Power, City of Los Angeles.
Edward C. Purpus, of Los Angeles, for respondent.
OPINION
SHINN, Justice pro tem.
Plaintiff was injured when an automobile in which he was riding, owned by appellant, referred to herein as defendant, and driven by its employee, A. G. Johnson, collided with a truck on a public highway when the driver, Johnson, fell asleep. The first contention of the defendant to be discussed is that plaintiff was a guest and not a passenger in the car and that defendant’s liability, therefore, could exist only in case of intoxication or willful misconduct of the driver. Peccolo and Johnson were employees, respectively, of Southern California Edison Company and defendant Department of Water and Power of the city of Los Angeles. They were regularly engaged in a joint inspection of districts fringing the limits of the city of Los Angeles preliminary to a segregation of business, by agreement between their respective employers, vendors of electric energy. For their transportation they used automobiles, alternating each week between a car of the department and one of the company. When a water department car was being used, Johnson drove it and Peccolo rode with him; such was their manner of use and operation of the car on the day and at the time of the accident. Nothing of value was exchanged between them or between their principals for the transportation except by way of alternate use of the cars. Each employee, in return for the use of his employer’s car by both employees one week, rode free in the car driven by the other employee the following week. In this manner the expense of transportation was shared, perhaps not equally, but approximately so, and upon a basis satisfactory to the employers. Thus the passage of each employee was paid for not in money but in transportation, which was undoubtedly compensation, fully creating the relation of carrier and passenger and not that of host and guest. Parrett v. Carothers (Cal.App.) 53 P.2d 1023; Jensen v. Hansen (Cal.App.) 55 P.2d 1201.
The second contention of appellant is that the employees were engaged in a joint enterprise, as that term is used in negligence law. This point is not well taken. A joint enterprise which will hold each of those engaged therein responsible for the negligence of the others is one where there is not only a common purpose, but also a common control or right to control the instrumentality of conveyance. That the two employees had a common purpose cannot be questioned, but it is not true that they had joint control of the operation of the machine or the right to such joint control. The testimony was that each drove the car which belonged to his employer and that the one who rode as a passenger carried a map consisting of a long, narrow strip showing power lines in the vicinity of the city boundary line, and that this map was checked and corrected according to actual conditions as they were found to exist. The only fair inference from the testimony is that each employee was expected to drive the car of his employer and there is no evidence that either ever deviated from that practice. In fact, then, there was no joint control. The principle is recognized that there may be an implied right of control, to be inferred from the legal relationship of the parties. In Bryant v. Pacific Electric Ry. Co., 174 Cal. 737, 164 P. 385, 387, in rejecting the contention that a common purpose in driving an automobile is sufficient as a basis for the imputation of negligence of the driver to those sharing the common purpose with the driver, the court said, "In our opinion, the doctrine of imputable negligence should not be so loosely applied. To do so leaves the law in an uncertain state. The better view is expressed by Nonn v. Chicago City Ry. Co., 232 Ill. 378, 83 N.E. 924, 122 Am.St.Rep. 114: ‘There can be no such thing as imputable negligence, except in those cases where such a relation exists as that of master and servant or of principal and agent. In order that the negligence of one person may be properly imputed to another, they must stand in such relation of privity that the maxim qui facit per alium facit per se directly applies.’ Indeed, no other rule is consistent with section 1714 of the Civil Code, wherein it is declared that every one is responsible for an injury occasioned to another by his want of ordinary care ‘except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself.’ (Italics ours.)" This doctrine was reaffirmed in Pope v. Halpern, 193 Cal. 168, 223 P. 470, and has been consistently followed. Since, therefore, it can be said neither as a matter of fact nor of law that Peccolo shared with Johnson the control or right of control of the operation of the car, there is no basis for the claim that they were engaged in a joint enterprise so as to render the negligence of one imputable to the other.
The liability of defendant as owner consenting to the use of its automobile by Johnson was limited to the sum of $5,000 under the provisions of sections 1714 1/4, 1714 1/2, of the Civil Code (now sections 400 and 402 of the Vehicle Code [St.1935, c. 27, pp. 152, 153]) unless at the time the accident Johnson was acting within the scope of his agency or employment. The verdict was for more than $5,000. It is claimed to be excessive because Johnson was not engaged in the service of his employer when the accident occurred. This contention must be upheld. The evidence shows that Johnson and Peccolo had discontinued work a little before noon and had driven some miles in to San Fernando where they had lunch; that after lunch the car was driven down a side street and parked while the men read until 1 o’clock, at which time they started to drive back to the point where their work would be resumed in the afternoon. They had a mile or more to go when the collision with the truck occurred. There was testimony from an employee of Southern California Edison Company that the men were allowed an hour for lunch and, in addition thereto, whatever time it took to drive to and return from the place where they ate. The trial court evidently was of the opinion that while the men were traveling to work they were acting in the service of their employers. In a general way this would be true. They drove as nearly as possible to the city boundary lines checking power lines and while so traveling they were, of course, in the service of their employers, but in driving in to San Fernando to lunch they were serving their own interests exclusively. The return trip after lunch to the point where they had left off work at noon was made necessary by their departure therefrom upon their personal mission. At the time of the accident they had not yet returned to the service of their employers. The fact that they were allowed, in addition to an hour at noon the time required to drive to and from the place where they had lunch has no bearing upon the purpose of their trip in to San Fernando, nor does it tend at all to prove that they were in the service of their employers during that time. It proves only that they were allowed something more than an hour for lunch.
It is well settled by the authorities that an employee, while taking time away from his work for meals, is not in the service of his employer and that the latter therefore is not responsible for negligence of the employee during such periods of absence from work. Adams v. Tuxedo Land Co., 92 Cal.App. 266, 267 P. 926; Helm v. Bagley, 113 Cal.App. 602, 298 P. 826; Martinelli v. Stabnau (Cal.App.) 52 P.2d 956. The present case clearly falls within the foregoing rule. The evidence therefore fails to support the finding of the trial court that Johnson at the time of the accident was acting in the course and within the scope of his employment. The legal limit of defendant’s liability to plaintiff was therefore $5,000.
The further point is made that the court erred in admitting into evidence certain interoffice correspondence of the Department of Water and Power. Over the defendant’s objection the court admitted a letter written by the compensation division of the department to an assistant city attorney, stating that Johnson was engaged in his regular duty of making an inspection of certain power lines at the time of the accident. Likewise, over defendant’s objection, there was admitted a report of the accident to the compensation division by Johnson, in which he stated that the accident was caused by his falling asleep (to which he testified at the trial), and evidence was also admitted to the effect that Johnson had received compensation from the department. One of the objections now urged is that the letter of the compensation department to the city attorney’s office was privileged, but as that objection was not made at the trial it may not be entertained here. Plaintiff’s counsel stated, in reply to a question by the court, that the purpose of the evidence to which defendant objected was to show the employment of Johnson by the Department of Water and Power, a fact which was not disputed. If the evidence had a further tendency to show that Johnson was acting at the time of the accident in the course of his employment, any error which the court may have committed in receiving such evidence must be regarded as harmless in view of our conclusion that Johnson was not acting in behalf of his employer but wholly in his own interests at the time of the accident.
The judgment is modified by reducing the amount thereof to the sum of $5,000 and, as modified, is affirmed.
We concur: HOUSER, P. J.; DORAN, J.