(212 P.) ees were not in the performance of an act either directly or indirectly connected with the business of the employer nor incidental thereto, but were engaged in an act for their | own individual and personal convenience, and from which the employer was to derive no benefit. sive with the employee's expense account and extend the liability of the employer for acts of a servant as being within the scope of employment to acts having no relation whatever to the actual business of the employer and to the accomplishment of the results for which the servant was hired. Having in mind the purpose of the employee's employment and the results to be accomplished thereby, the act of the employee in going to dinner, not on his way from work but after having gone home, cannot be said to have any relation to this business either directly or incidentally; it was not in furtherance of the master's business of installing road signs, nor for the benefit of that ant's duties in the installation thereof. It was not, therefore, within the scope of his employment. It may be conceded that the use of the truck for transportation to and from their work to their home was for the benefit of the employer indirectly for the reason that it permitted them to devote more time to accomplish the results of installing road signs, for which they were employed. Also, from the fact that they had what may be termed a "roving commission," having no fixed hours of employment and no fixed place of employ-business nor was it in the line of the servment, it may be admitted that their employment commenced when they left the house in the morning and did not terminate until they returned in the evening. This point was, how- [4] It is insisted by plaintiff that the eviever, the utmost boundary of their employ-dence adduced having conclusively shown the ment and was not enlarged by the fact that relation of master and servant, a prima facie they were permitted the use of the truck in case was made out of the responsibility of going to places to get their meals. This was the master which must be overcome by the permitted solely for the accommodation of defendant, and that a nonsuit was therefore the employees themselves. We cannot assent improper. But to recover against an emto the reasoning of plaintiff that because it ployer upon the theory of respondeat supewas necessary for employees to eat and sleep rior, it is necessary for the plaintiff to estabin order to perform the labor for which they lish the two distinct facts of (1) the status are employed, that these acts are incidental of master and servant, and (2) that the act to their employment. 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. Judgment affirmed. Kelley and his associate were paid so much per day and their expenses. It was no concern of the employer what they did after returning home, nor can it be inferred that the employer had any control over them after that time. At that time they were through for the day, and it was no concern of the employer as to when they ate or where they ate. If, for instance, the employees had decided to defer dinner until after the theater, could it be said that during the interim they were engaged in the employer's business? Or if the employees had concluded that they would go to an adjoining town, 20 or 30 miles away, to get a meal, surely it could not be said that the trip was within the scope of their employment. Nor do we believe that the inclusion of the employees' meals in their expense account extended the employer's business to that of boarding its employees. To so hold would be to make the employer's business coexten We concur: SHAW, C. J.; LAWLOR, J.; SLOANE, J. WASTE, J., being disqualified, does not participate in the foregoing. Ex parte MURPHY. (Cr. 2466.) (Supreme Court of California. Jan. 5, 1923. Rehearing Denied Feb. 1, 1923.) 1. Municipal corporations 592(1)—General traffic laws of state are not superseded in charter cities.. The provision of the San Francisco Charter that, except as otherwise provided in the Charter or in the state Constitution, the supervisors shall have power to control the use of streets, does not supersede the Motor Vehicle Act (St. 1919, p. 191), within the city, since the regulation of traffic is not a municipal affair in which by the Constitution chartered cities are given power superior to that of the state Legislature. 2. Municipal corporations 703 (1) -Provision of general traffic laws excepting subjects for regulation by cities not invalid curtailment of rights of cities. 6. Municipal corporations 707-Recital of In a judgment of conviction for violation of ries," after the number, was not a jurisdiction- In Bank. Application by Della Murphy for writ of habeas corpus to procure the release of John H. Murphy from custody after conviction of operating an automobile carelessly and recklessly on a public street. Writ discharged, and prisoner remanded to custody. Clarence A. Henning, of San Francisco, for petitioner. R. M. J. Armstrong, of San Francisco, for sheriff. LAWLOR, J. instituted this proceeding to secure the re- The provision of Motor Vehicle Act (St. 1919, p. 191), § 22, subd. d, that local authorities shall have no power to enact traffic regulations inconsistent therewith with certain specífied exceptions, could not limit the power of lo-victed of a misdemeanor in violating Ordical legislative bodies to pass regulations not inconsistent with the general law, in view of Const. art. 11, § 11; but, since the Motor Vehicle Act was intended to cover the whole field of traffic regulation and any regulation by a city would be inconsistent therewith, the section in effect confers on the cities the right to regulate with respect to the excepted matters and is valid. 3. Municipal corporations 592 (2)-City or dinance is inconsistent with state statute prescribing punishment for the same offense. Motor Vehicle Act (St. 1919, p. 215) § 20, subd. a, requiring careful driving, creates the same offense as San Francisco Ordinance No. 1857, New Series, § 2, and the ordinance is therefore inconsistent with the Motor Vehicle Act, since a conviction under the ordinance would prevent a conviction under the state statute, so that the ordinance is void under Const. art. 11, § 11. 4. Habeas corpus 30 (2)-Reference to city ordinance in complaint does not prevent conviction thereunder for violation of state law. That a complaint on which a conviction was based charged violation of a city ordinance does not entitle accused to discharge on habeas corpus, where the conviction may be sustained under the state law; the acts alleged constituting the offense charged. 5. Municipal corporations 707-Complaint held to charge violation of Motor Vehicle Act. A complaint charging that defendant operated his vehicle upon a city street in a careless and reckless manner without due regard to the safety and convenience of pedestrians and other vehicles, thereby violating a specified city ordinance, contrary to the form of the statute, while not in the exact language of the Motor Vehicle Act (St. 1919, p. 191), in substance charges a violation of section 20, subd. a, of that act, and is sufficient to sustain a conviction thereunder. nance No. 1857 (new series) of the city and it is now contended that the said ordinance [1] Preliminarily it may be said that un- "Except as otherwise provided in this char- fornia [the board of supervisors shall have In that case the court reached the con- "The regulation of traffic upon the streets of a city is not one of those municipal affairs in which by the Constitution chartered cities are given a power superior to that of the state Legislature, but that such power is subject to the general laws of the state, and ordinances inconsistent therewith are invalid." It was there held that notwithstanding a provision in the charter of the city of Pasadena which delegated the power to regulate For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (212 P.) -traffic to the city, an ordinance passed for, cover the whole field of traffic regulation, that purpose was in conflict with the general law and invalid. Section 22, subd. (d), of the Motor Vehicle Act (St. 1919, p. 223), provides that "Limitations as to the rate of speed herein fixed shall be exclusive of all other limitations fixed by any law of this state or any political subdivision thereof. Local authorities shall have no power to enact, enforce or maintain any ordinance, rule or regulation in any way in conflict with, contrary to or inconsistent with the provisions of this act," excepting the regulation of traffic at street crossings or where traffic is heavy, of vehicles offered to the public for hire, of streets for the use of processions and assemblies, of traffic in cemeteries and parks, of vehicles used for carrying merchandise and freight, the use of trailers, the exclusion of heavily laden vehicles from particular streets or the declaration that they should be "one way" streets. Section 2 of Ordinance No. 1857 (New Series) of the city and county of San Francisco provides that "Every person, riding, driving, propelling or in charge of any vehicle upon any of the streets, shall ride, drive or propel such vehicle upon such streets in a careful manner and with due regard to the safety and convenience of pedestrians and all other vehicles upon such streets." Section 11, art. 11, of the Constitution, is as follows: "Any county, city, town, or township may make and enforce within its limits all such local, police, sanitary, and other regulations as are not in conflict with general laws." [2] It is necessary to determine whether the Legislature, by section 22, subd. (d), may lawfully restrict the local authorities in their control of traffic within their respective jurisdictions to the subjects enumerated therein. In Ex parte Daniels, supra, it is said that "The legislative declaration that local authorities shall have no power to enact, enforce or maintain any ordinance, rule or regulation in any way in conflict with, contrary to or inconsistent with the provisions of this act' amounts to no more than the similar constitutional declaration that general laws control municipal police regulations. (Const. art. XI, § 11.) If it were to be construed as an attempt to limit the power of local legislative bodies to pass regulations not inconsistent with such general law it would of course be unconstitu tional." any local ordinance on that subject in conflict with it would be unconstitutional and void without the declaration to that effect in the act. But if the Legislature had the power to enact the statute, intending it to cover the whole field of traffic regulation, it also had authority to make the exceptions enumerated in section 22, which amounted to a declaration that they should not be included in the general scheme of therefore be regarded as excluding such exlegislation. Section 22, subd. (d), must ceptions from the operation of the act. Such subjects being excepted from the field of regulation of the general law, local ordinances with respect to them are not in conflict with it. But conversely, other subjects, not so excepted, falling within the scope of the act, must be considered as included in its operation and may not be effected by inconsistent local ordinances. Viewed in this light, section 22, subd. (d), is a valid enactment and not an attempted statutory curtailment of the authority of the local legislative bodies. The ordinance involved in the case at bar does not fall within any of the exceptions to that subdivision. [3] Section 20, subd. (a), of the Motor Vehicle Act, provides: "The driver or operator of any vehicle in or upon any public highway shall drive or operate gard for the safety and convenience of pedessuch vehicle in a careful manner with due retrians and of all other vehicles or traffic upon such highway, and wherever practicable shall travel on the right-hand side of such highway." Stats. 1919, p. 215. The section contains other subdivisions specifically providing certain rules of conduct on the part of drivers of vehicles, as, for instance, giving signals upon turning at intersections. It also regulates the speed it and maximum limits for business and of vehicles, fixing a general maximum limother closely built-up districts and for other localities such as crossings. Thus it prohibits the operation of vehicles in an unsafe manner at any time and declares that in particular contingencies a failure to follow the rules there laid down is unsafe. Ordinance No. 1857 (New Series) of the city and county of San Francisco prohibits the operation of vehicles in an unsafe manner, with- ' out defining what shall constitute an unsafe method of operation. It is at once apparent that the two laws prohibit the same acts. In the case of In re Sic, 73 Cal. 142, 14 Pac. 405, wherein was involved an ordinance which was intended to prohibit opium dens, and which was substantially the same as a section of the Penal Code, it was said: It is further stated in the same opinion that "it cannot be doubted that the Legislature in enacting section 22 (d) with relation to the authority of municipalities to regulate speed intended to occupy the whole field of traffic regulation," and that "this legislation would seem to occupy the whole field of "It would seem that an ordinance must be traffic regulation." conflicting with the general law which may opThe Motor Vehicle Act being intended to erate to prevent a prosecution of the offense under the general law. The Constitution provides that no one shall be twice put in jeopardy for the same offense. If tried and convicted or acquitted under the ordinance, he could not be again tried for the same offense under the general law. The contrary doctrine has been held in some states, but this conclusion seems more in consonance with reason and justice. * * It will be observed that we only hold that there is a conflict where the ordinance and the general law punish precisely the same acts." It was held in Ex parte Daniels, supra, that "If we seek to uphold the local legislation by concluding that it is not in conflict with the state law for the reason that the ordinance, as well as the state law, prohibits an unreasonable speed, we are met with the proposition that a local ordinance cannot prohibit exactly the same thing prohibited by the state law and still be valid." It follows that section 2 of Ordinance 1857 (New Series) of the city and county of San Francisco is in conflict with the general law of the state, and therefore void under section 11, art. 11, of the Constitution. [4] However, we are of the opinion that the prisoner is not entitled to his discharge, but that his conviction may be upheld under the provisions of the Motor Vehicle Act. As already pointed out, section 20 (a) of the Motor Vehicle Act and section 2 of Ordinance 1857 (New Series) prohibit the same acts. Section 83 of the ordinance provides a penalty for a violation of its provisions consisting of a fine of not more than $100 or imprisonment for not more than 50 days. Section 32 (a) of the Motor Vehicle Act (St. 1919, p. 225) provides that— "Except as in this act otherwise provided, or where a different penalty is expressly fixed by this act, any person violating any of its provisions * * shall be guilty of a misdemeanor, and upon conviction thereof, unless in this act otherwise provided, shall be punished by a fine not exceeding five hundred dollars or by imprisonment in the county jail not exceeding six months, or by both such fine and imprisonment." Certain specified acts are declared by the statute to be misdemeanors, others are made felonies and in addition to the punishment! provided for a violation of its terms courts are empowered to suspend an operator's or chauffeur's license for a period of 30 days and such license may be revoked by the motor vehicle department. The penalty for the act in question in the case at the bar is provided by section 32 (a). "The prisoner's machine, operated as it is manifestly designed to operate, is nothing more ror less than a lottery as defined in section 319 of the Penal Code, and by section 320 every person who contrives, prepares, or sets it up is guilty of a misdemeanor. And, so far as lawfulness of the imprisonment is concerned, it is of no consequence that a violation of section 330a was charged in the complaint, instead of sections 319, 320, under which the facts bring the offense." This reasoning is equally applicable to the case at bar and the prisoner's conviction and detention under the Motor Vehicle Act entirely lawful if a commission of the offense there defined is charged by the complaint. In Ex parte Mansfield, 106 Cal. 400, 39 Pac. 775, the petitioner was convicted under a complaint of carrying on the business of selling liquor without having first procured a license so to do, contrary to ordinance number 124 of Butte county, which in section 1 required that such a license be procured and in section 5 provided that any one failing to procure such a license should be guilty of a misdemeanor. It was held section 1 was a valid exercise of the licensing power of the county, but that the penal provision of section 5, which was severable from the remainder of the statute. conflicted with section 435 of the Penal Code, which provides: "Every person who commences or carries on any business, trade, profession, or calling, for the transaction or carrying on of which a license is required by any law of this state, without taking out or procuring the license prescribed by such law, is guilty of a misdemeanor." The question was presented whether a crime was charged under section 435, inasmuch as the complaint did not follow the language of that section and only charged the commission of an offense under Ordinance No. 124. The court considered the common-law rule that in charging a statutory crime the conclusion of an indictment contra formam statuti is required, and it was held that the complaint was sufficient. It was there said: "The defendant in this case was plainly informed of the nature of his offense. It con sisted, in the language of the complaint, in carrying on the business of selling distilled, fermented, malt, vinous, and other spirituous liquors and wines without having procured a license so to do, contrary to the provisions of Ordinance No. 124 of Butte county, Cal., which ordinance is fully set forth. This was his alleged offense. If guilty of it he became amenable to section 435 of the Penal Code. In the Matter of Rogers, 160 Cal. 764, 118 Pac. 242, the prisoner was arrested on a charge of violating the provisions of section 330a of the Penal Code, making it a misde-The meanor to keep or maintain any mechanical device upon the result of the operation of which money or other valuable thing is staked or hazarded. The court said: * essentials to a criminal complaint in a jus- · tice's or police court, as set forth in section 1426 of the Penal Code, do not include a conclusion to the statute. Expressio unius est exclusio alterius. As to complaints for misdemeanors in justices' and police courts at least, (212 P.) the common law rule has been changed. The could be declared for nonpayment where the complaint in this case complies with the re- seller had not tendered such a deed. quirements of the law, and states a cause of action against the defendant." [5] In this case the complaint charged that The prisoner "did willfully and unlawfully drive, ride, propel and operate said vehicle upon a certain Fell street, between Masonic avenue and Ashbury street, in the city and county of San Francisco, state of California, in a careless and reckless manner without due regard to the safety and convenience of pedestrians and other vehicles upon said street. "Thereby violating the provisions of sections 2 and 83 of Ordinance No. 1857 (New Series) of the board of supervisors of the city and county, contrary to the form, force and effect of the statute in such case made and provided, and against the peace and dignity of the people of the state of California." While it was not in the exact language of the Motor Vehicle Act, it is in substance the same and could not have failed to inform the prisoner of the nature of his offense, and it clearly recited an act forbidden by the Motor Vehicle Act. [6] It is urged on behalf of petitioner that the judgment is void in that in describing the misdemeanor of which the prisoner was convicted it omits to add the words "New Series" after the number of the ordinance. This is not a jurisdictional defect (Ex parte Turner, 75 Cal. 226, 16 Pac. 898), and in addition we are holding it is not a prosecution under the ordinance but one under the Motor Vehicle Act. The other specifications in support of the petition are without merit for the same reasons. The writ is discharged and the prisoner remanded. We concur: SHAW, C. J.; WILBUR, J.; WASTE, J.; LENNON, J.; WARD, J. HOLMAN v. MUSSER. (Civ. 4341.) (District Court of Appeal, First District, Division 2, California. Nov. 23, 1922.) 1. Vendor and purchaser 97-No forfeiture for nonpayment of installments on land contract where deed not tendered as required thereby. A contract for the purchase of real estate, providing that, if no objection to title was made, the balance of the purchase price was to be paid in a certain manner upon the delivery to the purchaser of a properly executed and acknowldged deed, and also providing that fire insurance, rents, and water rates were to be prorated as of date of the delivery of the deed, held to require the seller to deliver a deed of the property at the time the first of the installments became due, and hence no forfeiture 2. Vendor and purchaser 46-That construction of land contract is unusual held Immaterial. That the construction placed upon a contract for the sale of real estate is unusual is immaterial. 3. Vendor and purchaser 46-Land contract must be construed if possible to avoid for. feiture of purchaser's deposit. Forfeitures are not favored in law, and a contract for the purchase of real estate must be construed if possible so as to avoid a forfeiture of the purchaser's deposit. 4. Vendor and purchaser 341 (3)—Evidence held to sustain finding that purchaser had not abandoned contract so as to make tender of deed unnecessary. In an action to recover a deposit paid under a contract for the purchase of real estate claimed by the seller to have been forfeited for nonpayment of installments due, a finding that the purchaser had not announced an intention not to go on with the contract, so as to relieve the seller from tendering a deed, held sustained by the evidence. LANGDON, P. J. This action was brought by the plaintiff to recover $500, money paid by him on a contract to purchase from defendant certain real property in Oakland, Cal., on the ground that the defendant had abandoned and refused to perform said contract. The contract entered into between the parties was dated November 12, 1920, and was as follows: "Received from Everett A. Holman the sum of five hundred dollars, being deposit on account of seven thousand nine hundred dollars, United States lawful money, the purchase price of the property this day sold to him subject to owner's approval, situate in city of Oakland, county of Alameda, state of California, and described as follows, to wit: "House and lot located at 628 Capel St. sub For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |