Counihan

While attempting to cross a street in Oakland plaintiff was struck and injured by an automobile driven by the defendant Beran; and she brought this action for damages against him and his co-defendant Lufstufka Bros. & Company (a copartnership) claiming that the accident was caused by the negligent operation of the automobile and that said copartnership was liable therefor under the doctrine of respondeat superior. A motion for nonsuit was granted as to the copartnership, and from the judgment entered thereon plaintiff prosecutes this appeal. The question presented for determination is, therefore, whether there was any evidence adduced at the trial legally sufficient to support the conclusion that the relationship of master and servant existed between said firm and Beran at the timé the accident happened.

The authorities hold that the real test to be used in determining the question of such relationship is to ascertain whether the person claimed to be the servant was subject to the control of the party sought to be charged as master as to the mode and manner in which the work was to be done (Royal Indemnity Co. v. Industrial Acc. Com., 104 Cal. App. 290 [ 285 Pac. 912, 913 ]; May…