Witness R. H. Cross." On December 30, 1919, the action was dismissed as to defendant Charles Madison.

Defendant's answer was filed on July 3, 1918, and in it she alleged she was induced to sign the note by the threats, menace and intimidation of plaintiff and his attorneys and that there was no consideration for its execution. On April 16, 1920, she filed an amendment to the answer, in which she alleged she signed the note as surety at the request of defendant, Charles Madison, who was the principal, and that this fact was known to plaintiff and his attorneys. As a supplemental answer or separate defense she alleged that the release of defendant Charles Madison operated to discharge and release her as surety from all obligation on the note and she pleaded such release as a defense to plaintiff's claim.

Upon the trial the court found that the allegations of the answer were untrue and that defendant executed and delivered the note in consideration of the forbearance of plaintiff to sue on a prior note executed in plaintiff's favor by defendant Charles Madison alone, and in consideration of its surrender and cancellation and the extension of the time for the payment of the indebtedness. Pursuant to the findings judgment was entered for plaintiff, from which defendant takes this appeal.

[1] Appellant's contention is that the evidence shows defendant signed the note as surety only, that the findings to the contrary are therefore erroneous and that the release of defendant Charles Madison operated to release her. Supporting this contention is her own testimony that at the time the note was signed "Mr. Cross wished me to sign the note also, so that if Mr. Madison should come into possession of any property he couldn't turn it over to me. I simply signed as a surety," that with reference to the matter of suretyship "they wished me to sign with Mr. Madison so that I wouldn't have so that he couldn't turn any property over to me. . . I only signed as a surety on the note." In a deposition taken before the issue of suretyship was raised by the amendment to the answer, Cross had testified as follows: "He [defendant Charles Madison] said that he could not pay it, and could not give any security except the endorsement of his wife, Mrs. Jessie Madison, the defendant in this action. . . . Q. Did he say he would undertake to get

...

her to go as his security at that time? A. Yes, and told me she was in the city. . . . Q. Did he suggest to you that she might go security on this note, or did you suggest it to him? A. He suggested it to me. Q. And you had ascertained, either through Mr. Madison or by some other means, that she had property, or might have property, and you felt that she would be sufficient, or some, security on that note? A. That is right. . . . Q. At the time the note was signed, did you explain to Mrs. Madison what it was for? A. Yes, sir. Q. What did you say? A. I asked her if she understood what she was doing, and she said she did, that Mr. Madison had explained it to her. I said that Mr. McCarthy held Madison's note and was intending to commence suit upon it, that we required him to give some security, and he had offered her as security on a new note." He explained his use of the words "security" and "surety" by stating that at the time the deposition was taken the question of suretyship had not been raised, that he was not speaking with reference to it and was not using those words in a technical sense.

Opposed to the foregoing evidence is the fact that the note was in form joint and several and the testimony of appellant that at the time the note was signed defendant Charles Madison met her on the street and they went to Cross' office together; that there was very little conversation; that Cross asked if they were ready to sign the note and she said, "Yes"; that she stated to Cross that defendant Charles Madison had told her what the note was for; that he mentioned the fact that there was a prior note; that Cross asked her if she fully understood what she was doing and that she answered that Mr. Madison had explained what the note was for. She stated this was about all the conversation that occurred. Cross testified that respondent had held an unpaid promissory note of defendant Charles Madison which he had unsuccessfully tried to collect, that defendant Charles Madison had offered to give a new note signed by himself and his wife, that the matter had been placed entirely in his hands by respondent and that appellant's account of the signing of the second note was practically correct. He further stated that the old note was delivered to defendant Charles Madison when the one of September 22, 1911, was executed; that he did not recall

anything having been said concerning the note being given to prevent defendant Charles Madison from transferring property to appellant and that nothing whatever was said about appellant being a surety for her husband. This testimony presents a conflict on the question as to the capacity in which appellant signed the note.

In Casey v. Gibbons, 136 Cal. 368, 371 [68 Pac. 1032], it was held that in attempting to show, under section 2832 of the Civil Code, that one has signed an obligation as surety only, it is necessary to allege and prove that the payee not only knew of the fact of suretyship, but consented to deal with the signer in the capacity of surety. There is nothing in the evidence in the case at bar to show that respondent or his agent Cross recognized appellant as a surety merely or consented that she act as such. Although in previous discussions the subject of her acting as a surety may have been considered, her own statement that she signed as such is the only evidence that that was the position she assumed when the note was finally executed. The evidence amply supports the finding that she was not a surety.

Because of this conclusion it is unnecessary to consider the point that appellant, as a surety, was released by the release of defendant Charles Madison.

The judgment is affirmed.

Sloane, J., Wilbur, J., Waste, J., and Lennon, J., concurred. Shaw, C. J., dissented.

[S. F. No. 9896. In Bank.-December 30, 1922.] MABEL KISH, Appellant, v. CALIFORNIA STATE AUTOMOBILE ASSOCIATION (a Corporation), Respondent.

[1] EMPLOYER AND EMPLOYEE-ACTS OF EMPLOYEE-LIABILITY OF EMPLOYER. A master's liability, being predicated upon the fact of the employment, he is not responsible for the acts of his servant while the latter is pursuing his own ends, even though the acts could not have been committed without the facilities afforded to the servant by his relation to his master.

[2] ID.-SERVICE WITHIN SCOPE OF EMPLOYMENT-INDIRECT ACTS.In order to hold a master liable for the acts of his servant, it is not necessary that the latter shall be engaged in the direct performance of the thing which is the ultimate object of his employment, for also included within the scope of the servant's employment are those acts which incidentally or indirectly contribute to the service.

[3] ID.-INSTALLATION OF ROAD SIGNS-USE OF AUTOTRUCK OF EMPLOYER COLLISION EN ROUTE TO SUPPER-LIABILITY OF EMPLOYEE. A person employed to install road signs for an automobile association who had no fixed place or fixed hours of employment and who was allowed his meals as part of his expense account and permitted to use an autotruck of his employer in going to and from his meals, was not at the time of a collision between the truck and another, engaged in the performance of an act either directly or indirectly connected with the business of his employer or incidental thereto, where the same occurred after he had finished the job of putting up signs for the day and after he had gone home and while on his way down-town for supper.

[4] ID.-ACT OF SERVANT-LIABILITY OF MASTER-EVIDENCE-PRIMA FACIE CASE. In an action against a master for an injury committed by his servant, a prima facie case is not made out by mere proof of the relationship between them, but it is also essential that it be shown that the act was committed within the scope of the employment.

APPEAL from a judgment of the Superior Court of Fresno County. M. F. McCormick, Judge. Affirmed.

The facts are stated in the opinion of the court.

G. L. Aynesworth and L. N. Barber for Appellant.

Everts, Ewing & Wild and J. R. Fitch for Respondent.

LENNON, J.-This is an appeal from a judgment of a nonsuit in an action for damages for personal injuries alleged to have been suffered by plaintiff as the result of a collision between an autotruck owned by the defendant and driven by an employee of the defendant, California State Automobile Association, and another autotruck in which the plaintiff was riding at the time of the accident. The relationship of employer and employee is admitted by the defendant and this appeal presents the single question of

whether or not the evidence adduced by the plaintiff was sufficient to show that, at the time of the accident, the employee was acting within the scope of his employment. In support of her cause of action the plaintiff relies solely upon the testimony of Kelley, the employee of defendant and the driver of the truck at the time of the collision. The facts as embodied in his testimony, which are pertinent to the point presented, briefly stated, are these: Kelley and one Daughters were employed by the California State Automobile Association in the work of installing road signs, and used in this work a truck of the defendant association. They had no stated hours of employment, the number of hours depending upon the territory to be covered and the trips to be made. While engaged in this work for the association, they were allowed their meals as part of their expense account and were permitted to use the truck in going to and from their meals. On the day of the accident Kelley and Daughters had been installing road signs near Clovis and had finished this particular work at about halfpast 5 or 6 o'clock in the evening. Instead of going to supper immediately upon the conclusion of their day's work they rode in the defendant's truck to their home at 147 Coast Avenue, Fresno, to wash and clean up and change their clothes. After they were cleaned up and while they were riding in the defendant's autotruck on their way downtown to get their evening meal, the accident which caused plaintiff's injury occurred.

[1] It is, of course, elementary that the master's liability, being predicated upon the fact of the employment, the master is not responsible for the acts of the servant while the servant is pursuing his own ends, even though the injury complained of could not have been committed without the facilities afforded to the servant by his relation to his master. (26 Cyc., p. 1536; Stephenson v. Southern Pacific Co., 93 Cal. 558 [27 Am. St. Rep. 223, 15 L. R. A. 475, 29 Pac. 234]; Brown v. Chevrolet Motor Car Co., 39 Cal. App. 738 [179 Pac. 697]; Berry on Automobiles, sec. 684.) Whether or not the master is responsible for the act of the servant at the time of the injury depends, therefore, upon whether the servant was engaged at that time in the transaction of his master's business or whether he was engaged in an act which was done for his own personal convenience or accom