Dalgleish

Plaintiff-respondent brought this action against defendant-appellant to recover damages for personal injuries sustained as a result of an automobile accident which occurred while plaintiff was riding in an automobile owned and operated by defendant. The jury returned its verdict in favor of appellant and against respondent. Respondent’s motion for a new trial was granted upon the ground of error in law occurring at the trial. It appears from the record and the briefs on file that the trial court based the error upon certain instructions given at the request of appellant.

Appellant first contends that the order granting a new trial should be reversed for the reason that the evidence would not support a judgment in favor of respondent as a matter of law. In this connection the appellant asserts that the evidence conclusively shows that at the time of the injury the respondent was an employee of the appellant acting within the scope of his employment, and therefore the Industrial Accident Commission had exclusive jurisdiction of the matter.

The rule to be applied has been recently stated by this court in Martin V. Smith, 103 Cal.App.2d 894, 897 [ 230 P.2d 679 ], where it was said…