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


Civ. 10278.

Decided: January 13, 1937

Frank V. Campbell, L. H. Schellbach, and Walter E. Rankin, all of San Jose, for appellant. Jensen & Holstein, of San Jose, for respondent.

From a judgment awarding damages to the plaintiff, Union Oil Company, one of the defendants, has appealed.

Plaintiff Gordoy was injured as a result of a collision between the automobile that he was driving and an automobile driven by Rex Flaherty, which occurred at the intersection of Stockton avenue and Polhemus street in the city of San Jose, Santa Clara county, during the noon hour on October 19, 1935. At the time of the collision plaintiff was proceeding west on Polhemus and Flaherty was driving north on Stockton. Although there exists a conflict in the evidence on the question of negligence and contributory negligence as well as damages, for the purpose of this appeal it is admitted that the negligence of Rex Flaherty proximately caused the injury suffered by the plaintiff. The only question is whether Flaherty at the time of the accident was acting within the scope of his employment. Therefore, we will state only the facts material to the questions involved on this appeal.

The evidence shows that defendant Union Oil Company maintains a service station at Thirteenth and Santa Clara streets in the city of San Jose. Rex Flaherty was a regular employee of Union Oil Company as an attendant at this service station. His working hours on the particular day were 9 a. m. to 5 p. m. with the right to eat lunch at any time that suited his convenience. His duties were the usual ones required of a service station attendant and in addition he was required occasionally during the day to go to town for the purpose of obtaining change, and also to turn in money at the branch office of the Union Oil Company. In going on these errands he was not restricted to any fixed or definite route to follow either in going or coming. Shortly before 12 noon on the day in question, defendant Rex Flaherty left the service station at 13th and Santa Clara streets, driving his own automobile, which he occasionally used for running similar errands for the company, and proceeded on his way to obtain change at the Anglo California Bank, which is situated on the northwest corner of Santa Clara and Market streets, and for the purpose of leaving money at the branch office of the company on Stockton street. While stopped near the bank, a Mrs. Frantz, who knew him but whom he had not known until she introduced herself as the mother of a friend and fellow employee, hailed him and asked him if he would take her to her home in the city of Santa Clara, some three miles northwest of San Jose. Mrs. Frantz had been waiting for a street car and was encumbered with a number of bundles. Mr. Flaherty consented to take the lady home and told her to wait and proceeded around the block to locate a parking place. Returning he assisted her with the bundles, placed them in the car, went to the bank and got change, and they then proceeded westerly on Santa Clara street to Stockton and north on Stockton to the point where the offices of the company heretofore referred to were located. Instead of stopping at the company's office to complete his errand for the company, he drove past the same and after proceeding north three blocks from the place where the office of the company was situated he collided with the automobile of the plaintiff. From the map attached to the transcript it appears from the service station at which Flaherty worked to the bank is thirteen blocks, from the bank to the branch office is fifteen blocks, from the branch office to the place of the collision is about three blocks, and from that point to the residence of Mrs. Frantz is about seventeen blocks. The course of travel from the station to said residence describes an arc extending from the east to the northwest. All points were on one continuous curved line.

The evidence showed that his taking Mrs. Frantz home was a customary courtesy and accommodation extended to employees or members of employees' families, and that his employer had never given any instructions or direct orders not to perform such courtesy, but on the contrary no question had ever been raised about such courtesy.

In its first point the Union Oil Company states the evidence and on it makes the contention that from the time Rex Flaherty passed the branch office of the company he was on an errand of his own and entirely without the scope of his employment. Under the facts of the instant case we are not at liberty to uphold such contention. The question is not an open one in this state. In the case entitled Kruse v. White Brothers, 81 Cal.App. 86, 253 P. 178, 181, the court had under consideration a set of facts as favorable, if not more favorable, to the employer. Commencing at the bottom of page 93 of 81 Cal. App., 253 P. 178, Mr. Justice Cashin, speaking for the court, said: “Whether the detour made by Meyer on the evening of the accident amounted to an abandonment of the employment was in view of the evidence a question on which reasonable men might differ. We cannot say as a matter of law that such was its effect; and are of the opinion that, as in the case last cited the question was one for the jury; and that their implied finding that it was not such abandonment is supported by the evidence.” Waack v. Maxwell Hardware Co., 210 Cal. 636, 292 P. 966, is to the same effect. The same point was before the court in Bryan v. Bunis, 208 App.Div. 389, 203 N.Y.S. 634. The court said, 208 App.Div. 389, 203 N.Y.S. 634, at page 635: “In determining whether or not liability exists under given circumstances, no hard and fast rule on the subject, either of time or space, can be applied. The choice of a different way back does not, as a matter of law, constitute an abandonment of the master's work. * * * Courts will not be limited by tests that are merely mechanical or formal; and its judgment, though it may be guided by location in time and space, will not be controlled by such circumstances, if there are others that characterize the intent of the transaction.” That such is the rule followed in nearly all jurisdictions is made clear by the authorities cited in the annotations set forth in the notes in 22 A.L.R. 1404, 45 A.L.R. 482, 68 A.L.R. 1055, and 80 A.L.R. 727.

In its next point the defendant makes the same contention by its attacks on the instructions given by the trial court. If, as we have held above, the evidence did not as a matter of law show that Rex Flaherty had at the time of the accident abandoned the business of his employer, no one of the instructions given by the trial court was erroneous, therefore it will serve no useful purpose to discuss each one of the sixteen instructions attacked by the defendant.

In its last point the defendant makes four separate assignments of misconduct on the part of counsel for the plaintiff. As to three of the assignments when the incident occurred the defendant stated in open court that it assigned the same as prejudicial misconduct. However, the court was not asked to admonish the jury. It follows that the defendant may not at this time complain. 2 Cal.Jur. 281. During the closing argument counsel were arguing regarding the importance of the fact that Rex Flaherty did not put on his brakes at the time of the collision. Counsel for the plaintiff stated: “Suppose he had done what his attorney for the Union Oil Company asks you to have us, or have you censure this man for not doing, suppose he had put on his brakes, what would have happened here? And it would have been good for the Union Oil Company, because they're not concerned with human values, concerned only with money; they would have been perfectly satisfied, because there wouldn't be any case here, Gordoy in all probability would be dead.” We will assume that the jury understood that statement and we will concede that the record properly presents the point. However, we are unable to state that the omission of the trial court to admonish the jury resulted in a miscarriage of justice.

The judgment is affirmed.