Plаintiff and respondent brought this action to recover damages for assault and battery alleged by him to have been committed by defendant Gilbert, who at the time was an employee of defendant and appellant Samuels. The cause was heard by the court and judgment was rendered in plaintiff’s favor against both Gilbert and Samuels. Gilbert has not appealed.
The sole issue presented is whether Gilbert was acting within the scope of his employment at the time of the assault and battery committed by him upon respondent.
Upon the day of the assault, Gilbert, who was a salesman for appellant Samuels in the latter’s business, came to Sacramento from his home in Red Bluff to attend a sales meeting. He drove to Sacramento in an automobile owned by appellant and furnished to Gilbert for use in his employment. On the same day respondent, also a salesman, attended a sales meeting in Red Bluff, to which he journeyed from his home in Chico. Each man at the time of the assault was returning to his home. They met and passed each other a few milеs north .of Chico. Although respondent testified he did not remember passing Gilbert, yet Gilbert testified that respondent so operated his car as to compel Gilbert to drive off the road pavement to avoid a collision. Gilbert turned around and pursued respondent, blowing his horn and blinking his headlights. Hearing the horn and observing the blinking lights, respondent stopped and Gilbеrt stopped his car back of that of respondent. What occurred then, as testified to by respondent was as follows: Gilbert came up to respondent, “hollered” at him and struck him through the open window of the car. Respondent started to get out and when he opened the car door Gilbert seized him, pulled him from the car and proceeded to beat him about the sides of the face. Respondent was knocked down and was then kicked in the face and ribs. His jaw was broken and he was battered and bruised until rendered unconscious. While this was going on he was calling for help to some people living just across the road whom he knew. These people came over and respondent asked them to call the officers who later came and took him to Chico. The foregoing version is iii sharp conflict with the testimony of Gilbert, who stated in substance that upon being forced from the highway to avoid a collision and believing that whoever was driving the ear was in no fit condition to drive and was a menace to the users of thе highway, he turned in pursuit for the purpose of stopping the driver and calling officers to take him in *3 charge. He testified that he found respondent to be highly intoxicated, that he еndeavored to persuade him to stop driving, whereupon respondent cursed him, knocked him down and continued hitting him after he got up. He said he then proceeded to dеfend himself by striking back. He asserted his only purpose was to detain respondent until officers could be called.
It is the contention of appellant that his employeе, Gilbert, while admittedly in the course of his employment in returning from the sales meeting to his home in Red Bluff, left that employment when he turned and pursued respondent for the reason and with the purpose as testified to by Gilbert and that his turning in pursuit and the following assault and battery were without the scope of his employment. These contentions were interposed аs a defense by specially pleading them in the answer of appellant, and responsive to these allegations the court found that the acts of defendant Gilbert were not in any way caused, induced or excused by any act of respondent and specifically that it was “not true that the plaintiff at or prior to the assault upon him by the defendant O. B. Gilbert, or at any time, made a violent or unlawful assault upon the person of the defendant O. B. Gilbert,” and that it was “not true that the said acts of the defendant 0. B. Gilbert were dоne and performed in whole or in part in pursuance of any plan, scheme or intent on the part of the defendant 0. B. Gilbert to effect an arrest of the plaintiff for any public offense. ’ ’ The court found that the assault occurred in the immediate course of an altercation between respondent and Gilbert which arose directly аnd proximately out of and was connected -with the employment of Gilbert and in the course and scope thereof; that the assault was unprovoked and without cause and committed by a man of great strength against a man who was weak and unable to defend himself.
It is clear that the court rejected in the main the testimony of Gilbert and believеd that of respondent. Under the familiar rule we are bound to accept the trial court’s conclusions in this regard. We have, therefore, a situation where Gilbert, while driving his car on his master’s business, believing his rights on the highway to have been violated, turns his car, pursues respondent, and, having caused him to stop, gives him a severe beating. The case is governеd by the rules laid down by the Supreme Court in
Carr
v.
Wm. C. Crowell Co.,
The foregoing was said in a ease where the employee, engaged in laying a floor, objected to the act of the employee of another contractor in placing a timber in the structure *5 prematurely. The employee dislodged the timbеr. After an interval the other replaced it, whereupon the employee threw his carpenter’s hammer, striking the other and injuring him. We see no essential difference betwеen the case before us and the Carr case.
The trial court was justified in concluding that Gilbert, angered by what he deemed to be the unlawful driving of respondent, lost his temper аnd proceeded by a series of connected and uninterrupted acts to administer dire punishment. This conduct on his part was so intimately connected with his service to his еmployer and so clearly resulted from a dispute arising out of his employment that his acts in turning, pursuing respondent and assaulting him must be held to have been within the scope of his employment.
The judgment is affirmed.
Adams, P. J., and Peek, J., concurred.
Appellant’s petition for a hearing by the Supreme Court was denied December 18, 1951. Shenk, J., and Edmonds, J., voted for a hearing.