Opinion
Rehearing Denied Dec. 6, 1930
Hearing Granted by Supreme Court Jan. 5, 1931
Appeal from Superior Court, City and County of San Francisco; Daniel C. Deasy, Judge.
Action by Alinda Poncino, administratrix of the estate of Eugenio Poncino, deceased, against Reid–Murdoch & Company and others. From a judgment upon a directed verdict in favor of defendant named, plaintiff appeals.
Affirmed.
Superseding opinion in 290 P. 510.
COUNSEL
Edwin H. Williams and Jewel Alexander, both of San Francisco, for appellant.
George L. Stewart and Jesse H. Miller, both of San Francisco, for respondent.
OPINION
STURTEVANT, J.
The plaintiff, as administratrix of the estate of her deceased husband, commenced an action against the defendants to recover damages for injuries suffered by her husband in an automobile collision. The defendants appeared and answered and a trial was had before the trial court sitting with a jury. The trial court granted a motion for a nonsuit in favor of Mr. Bodwin, from which order no appeal was taken. It directed the verdict in favor of the defendant corporation, and judgment was entered in favor of the corporation. From that judgment the plaintiff has appealed and has brought up an abbreviated bill of exceptions.
The record shows that Reid-Murdoch & Company is a corporation which has its main office in Chicago and another office at 101 Mission street, San Francisco. As to what is the nature of its business the record does not inform us. On the 16th day of April, 1928, and for some time prior thereto, the San Francisco office was divided into three departments. Mr. Bodwin was head of the sales department. Mr. Walker was head of the purchasing department. Another was in charge of the office.
On Saturday afternoon, April 14, 1928, Mr. Walker, accompanied by Mr. Bodwin as his guest, entered an automobile owned by the defendant corporation and drove to Burlingame, where Mr. Walker resided. They remained there until Monday morning, and at about 7 a.m. they started for the San Francisco office, where they were due at 8 a.m. Before reaching the office the accident occurred which gave rise to this action. Mr. Walker was driving the automobile at the time of the accident, and there is no contention that he did not have the right to do so or that the defendant corporation had not authorized him to do so.
One of the grounds of the motion for a directed verdict was "that it affirmatively appeared from the uncontradicted facts that at the time and place of the happening of the accident the defendant Frank E. Walker was driving the automobile of the said defendant corporation *** upon a mission of his own, and that *** the said defendant corporation was not liable for his acts." In the case entitled Estate of Baldwin, 162 Cal. 471, 123 P. 267, the court was considering an order directing a verdict. On page 473 of 162 Cal., 123 P. 267, the court said: "The conditions under which the course pursued by the court in this instance is held to be proper are defined by a series of uniform decisions of this court, to which it will be sufficient to make reference. The doctrine of scintilla of evidence is rejected, as it is by the courts of the United States. (Commissioners of Marion County v. Clark, 94 U.S. 278, 24 L.Ed. 59.) A directed verdict is proper, unless there be substantial evidence tending to prove in favor of plaintiff all the controverted facts necessary to establish his case. In other words, a directed verdict is proper whenever, upon the whole evidence, the judge would be compelled to set a contrary verdict aside as unsupported by the evidence. To warrant a court in directing a verdict, it is not necessary that there should be an absence of conflict in the evidence, but, to deprive the court of the right to exercise this power, if there be a conflict, it must be a substantial one." Applying that rule to the instant case it is sufficient to state that both Mr. Walker and Mr. Bodwin testified directly and positively that from 2 o’clock on Saturday until the time of the accident neither one had transacted any business for the defendant corporation. Under these circumstances, the defendant cites and relies on Kish v. California State Automobile Ass’n, 190 Cal. 246, 212 P. 27, and contends that before it could be held liable it was necessary that the evidence disclose that the act of the servant must be connected directly or indirectly with the business of the employer and be in furtherance of the object for which the servant was employed. We do not understand the plaintiff to controvert that proposition. However, the plaintiff calls to our attention the fact that the automobile was the property of the defendant corporation. It then claims that where it is shown that the automobile which struck the injured person belonged to the defendant employer and that the person driving it was his employee, a presumption arises that such person was acting within the general scope of his authority. Wagnitz v. Scharetg, 89 Cal.App. 511, 517, 265 P. 318. The case is not helpful. No question of authority is involved. Mr. Walker testified flatly that he had authority to use the car on Saturdays, Sundays, mornings, and evenings. But there was no evidence that his duties were such that at any time he used the car in the transaction, directly or indirectly, of his master’s business. The evidence adduced was to the effect that at the time of the accident the master’s business was not being transacted. Furthermore, the plaintiff calls attention to certain questions and answers all of which we will not attempt to quote. Some of Mr. Walker’s evidence is as follows:
"Q. But in your capacity as salesman you are working under him? A. Correct.
"Q. And you were at that time (the time of the accident)? A. Correct."
Some of Mr. Bodwin’s evidence was as follows:
"Q. What was his (Mr. Walker’s) relation to the sales department? A. He was not working as a salesman right then. He was going to the office attending to his duties as a buyer right then.
"Q. He was attending to the duties of his employment? A. Yes."
The plaintiff lays much stress on the words so used and asserts that the foregoing were statements to the effect that the employees were at work when the accident happened. The statements of the witnesses just mentioned are readily reconciled. In an altogether proper sense both Mr. Bodwin and Mr. Walker were employed by the defendant corporation on April 16, 1928. It is equally clear from the evidence that their day’s work on that date had not commenced at the time the accident occurred. Most assuredly we are unable to say that in granting the defendants’ motion the trial court abused its discretion. That being so, the judgment of the trial court should not be disturbed, and it is therefore affirmed.
We concur: NOURSE, P.J.; SPENCE, J.