Tighe v. Ad Chong

The plaintiff, Mazilla Tighe, brought this action for damages against Leong Cheung and his employer Ad Chong, alleging that Leong Cheung negligently collided with her on a sidewalk, as the result of which she sustained personal injuries, and that at the time of the accident he was engaged in performing the duties of his employment. A jury returned a verdict against both defendants for the sum of $2,500, and from the judgment entered thereon they appealed.

The testimony upon which the jury based its verdict was conflicting upon the issue of whether an impact actually occurred ; otherwise there was no dispute as to the facts. Resolving the conflict in favor of the jury’s verdict, the circumstances of the ease may be stated as follows: The accident occurred about 8:30 o ’clock in the morning, in front of a restaurant in the 300 block on Sutter Street in San Francisco. Plaintiff at the time was on her way to work in a downtown department store. Ad Chong was a peddler of fresh fruits and vegetables, which he sold and delivered from a motor truck; and Leong Cheung was employed by him as delivery boy. Shortly before the accident happened they parked their truck opposite and across the street from the restaurant and went inside for the purpose of selling some of their produce. Leong Cheung took along a load of vegetables, which he left inside; thereupon he started to return to the truck, empty-handed, to fetch another load; and just as plaintiff was passing in front of the restaurant he emerged suddenly through the doorway, backward, and apparently talking with someone inside. He then whirled around quickly and started across the sidewalk toward the truck. In doing so he collided with plaintiff, knocking her down, so she testified, and inflicting the injuries for which she was awarded damages.

We agree with respondent that the trial court was justified in refusing to accept appellant’s view of the law as stated by him in the concluding sentence of the foregoing instruction. In the case of Schediwy v. McDermott, 113 Cal. App. 218 [ 298 Pac. 107 ], a factual situation was presented identical with the one here involved, and the judgment, against the

The judgment against Ad Chong finds further support in two cases from other jurisdictions, cited by respondent. One is from New Jersey, and the other from Massachusetts. In the New Jersey case, Price v. Simon, 62 N. J. L. 153 [ 40 Atl. 689 ], an ice delivery man, after delivering ice at a residence, ran out of the yard toward his truck and collided with a child standing on the sidewalk. An action for damages was brought against the employer alone under the doctrine of respondeat superior, and a nonsuit was granted. But on appeal the judgment was reversed, the Supreme Court of that state saying: “The liability of the master for the negligent act of the servant is solved by determining whether the injury was inflicted while the servant was performing an act in the course of his employment by the master. His duty to the master was to deliver ice from the wagon to customers. When he was returning from the customer’s house to the wagon with the ice tongs, he was acting in the business of the master, as clearly as he was when he took the ice in, or as when he was driving the wagon. He could not conduct the business in which he was employed without going to the customer’s house, and returning to the wagon. In doing these acts, he represented the master, and for his negligence the master is liable.” Exactly that situation existed here. Leong Cheung could not conduct his employer’s business without going back and forth between the customer’s place of business and his

Moreover, and aside from the law as laid down by the decisions, it is clear that a ease of respondeat superior was established under the provisions of section 2338 of the Civil Code, which is the basic statutory law in this state upon that subject, and governs in cases of master and servant (Johnson v. Monson, 183 Cal. 149 [ 190 Pac. 635 ]; 16 Cal. Jur. 958). That section declares: “Unless required by or under the authority of law to employ that particular agent, a principal is responsible to third persons for the negligence of his agent in the transaction of the business of the agency, including wrongful acts committed by such agent in and as a part of the transaction of such business, and for his willful omission to fulfill the obligations of the principal.” As said in California Jurisprudence (vol. 1, p. 839) the provisions of the foregoing section are in accord with the letter and the spirit of the common law; they are also in harmony with section 243 of the Restatement of the Law of Agency; and it is to be noted, neither expressly nor by implication does said section 2338 contain any such conditions limiting the liability of the principal as are set forth in the final sentence of the appellant’s proposed instruction. Quite to the contrary, the law is well settled that in determining the question of respondeat superior the real test to be applied is whether at the time the employee commits the negligent act resulting in the injuries to the third person, he is engaged in performing some duty

In support of the legal principle contended for by appellant, as set forth by him in his proposed instruction, he relies on two cases from the state of Missouri, Phillips v. Western Union Tel. Co., 270 Mo. 676 [ 195 S. W. 711 , L. R. A. 1917F, 489], and Ritchey v. Western Union Tel. Co., 227 Mo. App. 754 [ 41 S. W. (2d) 628 ], and obviously his proposed instruction was based largely on the decision in the Phillips ease. For several reasons the rationale of the Missouri cases cannot be followed. The background of the Phillips case is as follows: Mrs. Phillips and her husband were standing on the curb waiting to cross the street with the traffic signal. A messenger boy, employed by the defendant company, came running along the sidewalk, looking backward over his shoulder at a newsboy from whom he had just snatched a paper; and he collided with Mrs. Phillips, knocking her down. At the time of the accident the messenger boy was carrying messages for his employer. Two actions for damages were filed. The one above cited was brought by Mrs. Phillips for the recovery of damages for the personal injuries she sustained as the result of the collision; the other by her husband for the recovery of the hospital and medical fees incurred by him on account of his wife’s injuries, and for loss of her services (Phillips v. Western Union Tel. Co., 194 Mo. App. 458 [ 184 S. W. 958 ]). Each secured a judgment, from which an appeal was taken by the company. The judgment in favor of the husband was for the sum of $2,000; therefore the appeal was taken to the St. Louis Court of Appeals, which affirmed the judgment as against the company under the doctrine of respondeat superior, its decision being based upon the ruling of the Massachusetts court in Ryan v. Keane, supra. In the action brought by Mrs. Phillips, judgment was given in her favor for $10,000. The appeal was therefore taken to the Supreme Court of Missouri, and the judgment against the company was reversed upon the ground that the doctrine of respondeat superior did not apply. The opinion was written by a court commissioner and subsequently adopted by the Supreme Court, one member of the court (Woodson, J.) dissenting. In thus reversing the judgment the Supreme Court refused to follow the decision previously rendered by the St. Louis Court of Appeals in the case of the husband, and ruled

From the foregoing it will be seen that even in Missouri there appears to be some doubt as to the soundness of the decision in the Mrs. Phillips case, and besides it is conceded that the legal doctrine upon which it is founded is contrary to the one adhered to in other jurisdictions. Furthermore, the present case is essentially different from the Phillips case in two respects: first, because here the accident was not brought about by any “rollicking” on the part of the employee ; although careless in his movements, he was attending strictly to the business of his employer. Secondly, as in the Schediwy and Price cases, at the time of the accident he was performing duties in connection with an instrumentality furnished by his employer, namely, a motor truck, which was being operated on the public streets.

Also in support of his position appellant emphasizes certain dictum found in a Pennsylvania case (Wesolowski v. John Hancock Mut. L. Ins. Co., 308 Pa. 117 [ 162 Atl. 166 , 87 A. L. R. 783 ]), wherein a pedestrian was struck and injured by an

The judgment is affirmed.

Peters, P. J., and Ward, J., concurred.