Bond v. Pitzer
| Decision Date | 18 August 1958 |
| Citation | 328 P.2d 1009,163 Cal.App.2d 1 |
| Parties | Janith Phillips BOND, Plaintiff and Appellant, v. Kenneth S. PITZER and Russell K. Pitzer, Individually and doing business as Bronsonia Apartments, Pauline L. Powell, Catherine Aull, William Aull, et al., Defendants and Respondents. Civ. 22746. |
| Court | California Court of Appeals Court of Appeals |
Morris Lavine, Los Angeles, for appellant.
Arthur M. Reilly, Los Angeles, for respondents.
In this action for damages for personal injuries, judgment upon a verdict was against defendants Catherine and William Aull and was in favor of defendants Kenneth and Russell Pitzer. (The verdict, as to Russell, was directed.) Plaintiff appeals from the portion of the judgment in favor of the Pitzers.
Plaintiff's automobile was parked at the curb on a street in Los Angeles, and plaintiff was standing immediately back of her automobile. A Ford automobile was parked a few feet back of plaintiff's automobile, and a Chevrolet automobile owned by the Aulls was parked a few feet back of the Ford. Catherine Aull was in the front seat of the Aull automobile. That automobile moved forward and struck the Ford, and caused the Ford to move forward and strike plaintiff and push her against the rear bumper of her automobile. Plaintiff was 'pinned' between the rear bumper of her automobile and the front bumper of the Ford, and she was severely injured.
On the date of the accident, April 22, 1955, and for approximately five years prior thereto, William and Catherine Aull, husband and wife, were employed as janitors of an apartment house. Kenneth Pitzer, the owner of the apartment house, resided in Berkeley. Russell Pitzer, the manager of the apartment house, resided in Pomona. Pauline Powell was employed as resident manager of the apartment house. Plaintiff was a tenant there.
Appellant contends that the verdict as to the Pitzers is contrary to law and the evidence. With reference to the verdict in favor of Kenneth Pitzer, appellant argues that Kenneth, as owner of the apartment house, was liable for the acts of his employee, Mrs. Aull, committed in the scope of her employment; that the evidence shows that at the time of the accident Mrs. Aull was on her way to the market to 'get some soap powder and other things for the apartment'; and that the jury should have found that she was then acting within the scope of her employment. With reference to Russell Pitzer, appellant contends that the judge erred in directing a verdict in his favor. She argues that Russell, as manager of the apartment house, was also liable for the acts of Mrs. Aull committed within the scope of her employment; and that the question as to whether she was acting within the scope of her employment should have been submitted to the jury.
Appellant (Mrs. Bond) testified that shortly before noon on the day of the accident (Friday), while she was polishing her car in front of the apartment house, Mrs. Aull came out of the apartment house and said: 'Mrs. Bond, would you take me down to the garage or some place to get the oil changed in my car; would you show me how to put the brakes on and stop the car, and take me down to Ralph's Market to get some soap powder and something for the building?'; shortly thereafter they entered Mrs. Aull's automobile, and Mrs. Bond drove the automobile to a Chevrolet garage; they returned to a place in front of the apartment house for the purpose of getting a shopping list from Mrs. Bond's mother--a list of articles to be purchased at Ralph's Market; Mrs. Bond parked the Aull automobile 'two or three cars' behind her own automobile; she put the brakes on, turned off the ignition, and left the key 'in the ignition'; she got out of the Aull automobile and called to her mother and asked whether the shopping list was ready; her mother said that the list was not ready; Mrs. Aull remained in the automobile; while Mrs. Bond was waiting for her mother to finish the list, she continued polishing her automobile, and she opened the automobile trunk; she heard Mrs. Aull ask Mrs. Aull to check 'on the gasoline' in the automobile; the next thing she (witness) remembered was that she was hit by the car (Ford) that was behind her.
Mrs. Bond testified further that about ten days before the accident she accompanied Mrs. Aull to Ralph's Market; on that occasion Mrs. Aull purchased 12 cans of Ajax cleaner; Mrs. Aull told Mrs. Bond that she was getting the Ajax cleaner for the apartment; subsequently she observed that Mrs. Aull used Ajax cleaner in cleaning the apartment where Mrs. Bond resided.
Mrs. Meehan, a witness called by plaintiff, testified that about noon on the day of the accident she heard a conversation between Mrs. Bond and Mrs. Aull; Mrs. Aull requested Mrs. Bond to go to the market for some cleaning things for the apartment, and to 'stop off' to get the oil changed; Mrs. Bond acquiesced and said that she would get her grocery list from her mother and do that shopping at the same time.
Mrs. Aull testified that on the morning of the accident, while she was walking down the steps in front of the apartment house, Mrs. Bond asked her if she wanted to go for a drive; Mrs. Bond said that she could show Mrs. Aull some 'parts about the car [new car of the Aulls]'; she (witness) said that she was on her way to Victor's (a grocery store about one-half block from the apartment house) to get some things to prepare for the Sabbath; Mrs. Bond said, 'Oh, come on and let's go'; she (witness) said that she would go over to the Chevrolet place with Mrs. Bond to ascertain how soon the oil should be changed in the automobile; Mrs. Bond drove the automobile of the Aulls to the Chevrolet place and back to a place in front of the apartment house; Mrs. Bond parked the Aull automobile, and she (witness) and Mrs. Bond got out of the automobile; a few minutes later, Mrs. Aull got back in the automobile to remove the keys; when she got in the automobile, it moved forward and hit the Ford, and the Ford hit Mrs. Bond.
Mrs. Aull testified further that she had never driven an automobile, and she had never tried to drive when she was alone in an automobile; she did not work at the apartment house on Fridays (the accident occurred on Friday); she never bought supplies for the apartment; she did not say anything before the accident 'about wanting to go to Ralph's store or any other store to pick up anything for the' apartment house.
Mrs. Powell testified (by deposition) that she was, and for 17 years had been, manager of the apartment house; her duties included the hiring of...
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