NELLIE A. LANE, Appellant, v. GERALD BING et al., Respondents, 202 Cal. 577

RICHARDS, J. This is an appeal from a judgment of nonsuit made and entered in favor of the defendant, J. F. West after the court had granted the said defendant’s motion for a nonsuit at the close of the plaintiff’s case in an action for damages brought by the plaintiff against said defendant West and certain other defendants for the recovery of damages alleged to have been sustained as the result of an automobile collision between two automobiles upon the streets of Long Beach upon the evening of May 3, 1924, one of said automobiles at the time of the collision being driven by the defendant Mrs.

Dessie Stapp, a stepdaughter of the defendant West, who was not present at the time of the collision.

The motion for nonsuit was based upon two grounds: first, that the plaintiff’s evidence was insufficient to show that the defendant West was the owner of the automobile which his stepdaughter was driving at the time of the collision; second, that the evidence was insufficient to establish any liability on the part of the defendant West for the injuries sustained arising out of said collision by showing that the said automobile was being used by said defendant’s stepdaughter within the scope of any agency or employment of his stepdaughter by defendant West, or in the course of his business.

The only evidence which the plaintiff produced at the trial for the purpose of fixing responsibility upon the defendant West was that of said defendant himself, and which was elicited from him in the course of presenting the plaintiff’s case through his examination as a witness under the provisions of

section 2055 of the Code of Civil Procedure. For the purposes of this decision it may be conceded that there was sufficient evidence thus elicited to justify a jury in determining that the automobile involved in the accident and driven by Mrs. Dessie Stapp was the property of the defendant West, although the title thereto seems to have stood in the name of his stepdaughter at the time of the accident complained of.

If this be conceded it follows that the only remaining question in the case is as to whether the plaintiff elicited from defendant West upon his examination sufficient evidence to justify the trial court in permitting the case to go to the jury upon the theory that the defendant’s stepdaughter at the time of the collision was so far the agent of said defendant, or engaged in doing any business for him, as to render said defendant liable for the injuries caused by said collision.

Upon this branch of the case the undisputed evidence shows that prior to and .at the time of the accident the defendant West was engaged in conducting a transfer business under the name and style of “West Transfer Company,” the office of said business being at his home; that his stepdaughter, Mrs.

Dessie Stapp, was employed by him and in the course of said business as his bookkeeper, the hours of her employment being between 7 o’clock in the morning until 4 o ’clock in the afternoon; that in order to increase her efficiency as a bookkeeper the defendant West had arranged for another and more expert accountant to come to his home occasionally in order to teach and assist his stepdaughter in keeping his books.

This service, while paid for by him, was rendered to her after the hours of her employment, the said accountant coming from his home some distance away and arriving by train or bus at a point several blocks from defendant West’s residence, the defendant being under no compulsion to provide said accountant with the means of getting to or returning from the place of giving such instruction.

Upon the evening in question the said accountant arrived at the home of defendant West after the hours of duty of his stepdaughter were over and found that the latter was dressed to go to a party and hence that his services upon that evening would not be required. The stepdaughter, however, upon her own initiative and without any direction from West offered ■ to drive said accountant back to the station from which he would go by train or bus to his home, and presently undertook to do so, using the said automobile.

She delivered the accountant at his station and was going on to her destination when the collision occurred, as the result of which the plaintiff’s injuries arose.

The only other evidence in the case upon which the plaintiff could predicate a claim of liability on the part of the defendant West for her injuries arising out of said collision was the fact that after the accident the defendant West had gone with his stepdaughter to the hospital to which the plaintiff had been taken and had there expressed his sympathy for the plaintiff and had assured her that the insurance company would reimburse her for the expenses incurred in consequence of her said injuries.

The foregoing was the state of the evidence at the time the plaintiff closed her case and defendant’s motion for nonsuit was made and granted.

It would seem to be clear that upon this state of the evidence the order of the trial court in granting such motion for nonsuit was properly made, since the undisputed evidence thus elicited showed that the defendant’s stepdaughter in undertaking to drive the said accountant to the train or bus on his way to his home was performing a volunteered function entirely outside the scope of her employment, and for the consequences of which the defendant West was in nowise responsible. The case of Brown v. Chevrolet Motor Co., 39 Cal.

App. 738 [179 Pac. 697], would seem to be entirely in point as to the similarity of its facts and also as to the comment which this court made upon it in denying a petition for a hearing herein.

Construing in its most favorable light the evidence elicited by the plaintiff from the defendant West it amounts to no more than a showing that the stepdaughter of said defendant in using the automobile, whether her own or the property of said defendant, to drive said accountant to the train or bus station on her way to her destination at the party or dance which she was to attend was simply doing a favor to the accountant after her regular hours of employment, and which was in no way so connected therewith as to render the defendant West responsible for anything which might happen in the course of her voluntary engagement.

The latest decision of this court touching this subject is that of Kish v. California State Automobile Assn., 190 Cal. 246 [212 Pac. 27], the following language of which aptly covers the present case: “But to recover against an employer upon the theory of respondeat superior, it is necessary for the plaintiff to establish the two distinct facts of (1) the status of master and servant and (2) that the act was done within the scope of the servant’s employment. The latter is as important and vital to plaintiff’s cause of action as the former.

If the same testimony which proved the relationship of master and servant proved that at the time of the act for which it is claimed the master was liable, the servant was not acting within the scope of and in the course of his employment, the prima facie case made by plaintiff is rebutted by the very proof offered to prove the first fact. It is not necessary, therefore, for the defendant to negate the master’s liability, inasmuch as the plaintiff has done so herself.

The proof at that stage lacks an essential element to support plaintiff’s cause of action and an order granting a nonsuit is, therefore, proper.” The order granting said defendant’s motion for nonsuit herein was proper and the judgment based thereon is, therefore, affirmed. Shenk, J., and Langdon, J., concurred.