Phillips

This is a petition for a writ of mandamus to compel the county clerk of Sacramento County to issue an execution under section 681 of the Code of Civil Procedure, after a final directed judgment by the District Court of Appeal had been entered.

The petitioners brought suit for damages against Singer Sewing Machine Company and its agent V. A. Larrabee, accruing as the result of an automobile collision. A trial by jury was waived. The trial court found that Larrabee was guilty of negligence as alleged, and rendered judgment against him in the sum of $7,500 for personal injuries sustained by Homer A. Phillips. The trial court, however, found that at the time of the accident, Larrabee was engaged as an “independent contractor”, and not as an agent of the company, and therefore rendered judgment that plaintiffs take nothing from the Singer Sewing Machine Company. The plaintiffs appealed under section 953a of the Code of Civil Procedure from that portion of the judgment which was rendered in favor of the Singer Sewing Machine Company. It was stipulated in writing by the respective parties that the sole question to be determined on appeal was whether Larrabee was acting in the capacity…