Harvey v. D & L Const. Co.

• Decision Date: 16 May 1967
• Citation: 59 Cal.Rptr. 255,251 Cal.App.2d 48
• Court: California Court of Appeals Court of Appeals
• Parties: Mitchell HARVEY, a minor, by his Guardian and Litem, Harry E. Westover, and Ray A. Harvey and Audrey Harvey, Plaintiffs and Appellants, v. D & L CONSTRUCTION CO., Defendant and Respondent. Civ. 29994.

Page 255

59 Cal.Rptr. 255

251 Cal.App.2d 48

Mitchell HARVEY, a minor, by his Guardian and Litem, Harry E. Westover, and Ray A. Harvey and Audrey Harvey, Plaintiffs and Appellants, v. D & L CONSTRUCTION CO., Defendant and Respondent.

Civ. 29994.

Court of Appeal, Second District, Division 4, California.

May 16, 1967.

Hearing Denied July 12, 1967.

O'Connor, Cavanagh, Westover, Anderson, Killingsworth & Beshears and John H. Westover, Phoenix, Ariz., Westover & Currey and Harry E. Westover, Corona del Mar, for plaintiffs and appellants.

Crider, Tilson & Ruppe, Elber H. Tilson and Abe Mutchnik, Los Angeles, for defendant and respondent.

JEFFERSON, Associate Justice.

Plaintiff, a minor, by his Guardian Ad Litem, appeals from a judgment entered after the granting of a nonsuit in favor of the defendant D & L Construction Company (hereafter referred to as D & L), in a personal injury action brought against it and its employee, one Jesse Chism (not a party to this appeal), who was driving his pickup truck on a highway in Arizona when he struck plaintiff, who was riding a bicycle, severely injuring him. The accident occurred while Chism, a cement finisher, was on his way home to Pasadena for the weekend from a construction job in Yuma, Arizona, where he was employed during the week by D & L. Riding with Chism at he time was one Chris Richards, a fellow D & L cement finisher, who was also going home for the weekend.

Defendant D & L was sued on the theory of Respondeat superior. The nonsuit was granted upon its motion, at the conclusion of the plaintiff's case, the court ruling that the evidence was insufficient to take the case to the jury upon the question of whether the employee Chism was within the course and scope of his employment at the time of the accident.

Pertinent to this appeal is the following principle of law:

'In reviewing a judgment of nonsuit, it must always be borne in mind that a court can grant a nonsuit only when, disregarding conflicting evidence and giving plaintiff's evidence all the value to which it is legally entitled, including every legitimate inference which may be drawn therefrom, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff is such a verdict were given. (Citations.)' (Robinson v. George, 16 Cal.2d 238, 241--242, 105 P.2d 914, 916.)

Chism (called to testify by plaintiff pursuant to section 2055 of Code of Civil Procedure) was the only witness at the trial. He related that before he went to work for D & L at the Yuma construction site, he had worked for the same company in Canoga Park, California. He would go to different construction sites and work for various employers, D & L included. He had considerable experience as a cement finisher and his services were often sought by contractors. Jess Hallmark, the superintendent of D & L construction work being done in Yuma, came to him several times while he was working in Canoga Park, and asked him to come to work for D & L in Yuma. Hallmark related that he was having trouble securing and keeping competent cement finishers on that job and it would make his job easier if Chism would come down there to work. After initially turning the job down, he decided to go after not being able to work on the Canoga Park job for three weeks because of rain. Before driving to Yuma, he had first filled his gas tank with 'D & L gas', and had picked up some D & L equipment as Hallmark had instructed. He was there a few days before the terms of his employment were agreed upon. Hallmark agreed to pay him $187 per week take home pay for a five-day week 'rain or shine'. He had insisted on this guarantee. D & L in addition provided him with a place to stay during the week. At the Canoga Park site he had been paid by the day--$35 for an eight-hour day (or $175 if he worked a full week).

Prior to the accident, during the time he worked for D & L in Yuma, he drove home to Pasadena on every weekend. Sometimes he drove his superintendent's truck. On a number of these trips he brought D & L supplies back to the job site. On three or four occasions, while he was home he hired other cement finishers, at D & L's request, and on one occasion transported them to Yuma. He had hired Chris Richards. He gave the latter lifts back and forth with him on the weekends. With the exception of Richards, the employees he had hired had all quit. Richards was riding with him when the accident occurred. While working on the job itself he often used his truck to haul D & L equipment around. He filled his truck with D & L gas whenever he needed it. He had D & L gas in the truck at the time of the accident.

Chism further testified, in response to questioning by counsel for D & L, that he had no errand to perform for D & L on the weekend of the accident; he had neither men nor equipment to bring back on his return trip.

Initially, it is to be noted that, although under conflicts of law principles, the law of Arizona apparently governs in this case--being the jurisdiction where the alleged tort occurred (2 Witkin, Summary of Cal. Law, p. 1236)--it is conceded no conflict in fact exists. Arizona and California...