D'Aleria v. Shirey
| Decision Date | 05 February 1923 |
| Docket Number | 3895. |
| Citation | 286 F. 523 |
| Parties | D'ALERIA v. SHIREY et ux. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Rehearing Denied March 12, 1923.
Miller Thornton & Miller, of San Francisco, Cal., and W. I. Gilbert of Los Angeles, Cal., for plaintiff in error.
W. C Cavitt, of San Francisco, Cal., for defendants in error.
Before GILBERT and HUNT, Circuit Judges, and WOLVERTON, District judge.
The defendants in error obtained a judgment against the plaintiff in error for damages resulting from a collision between an automobile occupied by the former and an automobile belonging to the latter. The plaintiff in error, in her automobile, together with one Armand d'Aleria, arrived at 11 o'clock at night at the hotel in San Francisco where they both resided. The plaintiff in error went into the hotel leaving d'Aleria to take the automobile, which was a large locomobile touring car, to the garage where it was usually kept. Twenty minutes later, the collision occurred while the automobile was being driven by d'Aleria. The only testimony as to what occurred from the time when he left the hotel until the accident is furnished by him. Before giving his testimony he had married the plaintiff in error. He testified that the plaintiff in error told him to take the automobile to the garage, and that he replied that he would first call at a certain music store to see a music publisher. He testified that he did make the call, and that thereafter he picked up a friend whom he intended to take to the Fairmont Hotel, and that he was about to do so when the accident occurred. The court below instructed the jury that if the automobile in possession of the driver was at the time of the accident operated by him for his own purposes, and not in the transaction of any of the duties of his employment with the plaintiff in error, the latter could not be legally held responsible for damages; but that, if the automobile were driven for the purposes of the owner, she would be liable for the driver's acts of negligence.
The only assignment of error is that the court below denied the motion of the plaintiff in error for an instructed verdict in her favor. The plaintiff in error relies upon the doctrine that for a negligent act done by a servant the master is not liable, unless the act was done at a time when the servant was engaged in his master's business. The evidence sufficiently shows that d'Aleria, although not engaged as a chauffeur by the plaintiff in error, sustained such relation to her that in returning the automobile to the garage, he acted as her servant. He had been employed by her as a musician. He had, as the evidence clearly indicates, acted as her agent in going to the garage to get the automobile for her, in driving it for her, and in returning it...
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