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District Court of Appeal, Second District, Division 2, California.


Civ. 12340

Decided: January 24, 1940

Charles A. Son and Clarence G. Weisbrod, both of Los Angeles, for appellant. Lyndol L. Young and Joseph H. Edgar, both of Los Angeles, for respondent.

This action was commenced by plaintiff and appellant to recover damages for injuries suffered when he was struck by an automobile driven by defendant Melvin W. George on West Adams street near Washington boulevard in the city of Los Angeles. It is alleged in the complaint that George was at the time of the accident an agent and employee of defendant and respondent Citizen–News Company. This allegation was denied by respondent in its answer. At the close of appellant's evidence the trial court granted the motion for a nonsuit made on behalf of the Citizen–News Company and the present appeal was taken from the resulting judgment.

From the evidence presented it appears that defendant George was employed to deliver papers on a newspaper route in the afternoons, his duties as a route-carrier being terminated before 6 o'clock p.m. An arrangement was made by and between George and respondent whereby after his work as a route-carrier George would be subject to telephone call by the district supervisor for respondent who would notify him of any subscribers making complaints that they had not received delivery of their papers. Thereupon George would deliver copies of the newspaper to the addresses from which complaints had come in. In doing so he furnished his own automobile and received compensation, referred to as “a commission”, of 15 cents or 25 cents for each delivery according to the zones in which the deliveries were made. Sometimes George telephoned from his home to the supervisor to secure addresses for deliveries. The supervisor remained on duty until 7:30 o'clock p.m. only and the period during which George was thus subject to call was between the hours of 6 and 7:30 o'clock p.m. on each day. The accident in question occurred at about 8 o'clock p.m. in the evening of April 13, 1937. At that time George had finished all his deliveries and was on his way to his home from the point of his last delivery, which was several blocks distant from the scene of the accident. He had been furnished with no addresses for other deliveries.

Assuming that defendant George was an employee of respondent rather than an independent contractor, a question we need not determine, there is no escape from the conclusion that at the time of the accident defendant George had finished his duties and was on his way home. The supervisor's duties ended at 7:30 o'clock in the evening and George could not receive further instructions for deliveries on that date. Appellant relies upon Makins v. Industrial Acc. Comm., 198 Cal. 698, 247 P. 202, 204, 49 A.L.R. 411, wherein it was held that Makins was entitled to compensation under the terms of the Workmen's Compensation Act (St.1917, p. 831). Makins was employed to deliver newspapers within the limits of a defined district in the city of Oakland. At the time of receiving the injuries he had finished his deliveries but in going home was yet within the territorial limits of his district. It was held that, “under the facts of this case, the district thus established and controlled by the employer will be held to be the employee's place of employment”. In the case before us the evidence does not disclose the location of George's home or the limits of any district in which he was called upon to make deliveries of newspapers. It was not shown that the accident occurred at the “place of employment”. Since George had finished his duties for the day and was on his way home the accident did not occur in the course of his employment. Mauchle v. Panama–Pacific International Exp. Co., 37 Cal.App. 715, 174 P. 400; London Guarantee & Accident Co. v. I.A.C., 190 Cal. 587, 213 P. 977. Respondent having denied appellant's allegation of agency, it was incumbent upon appellant to affirmatively establish that George was at the time of the accident an agent of respondent engaged in the performance of his duties. Wilson v. Droege, 110 Cal.App. 578, 294 P. 726. This appellant has failed to do.

The judgment is affirmed.

WOOD, Justice.

We concur: MOORE, P.J.; McCOMB, J.