Huddy v. Chronicle Publishing Co.

In this action plaintiff sought to recover judgment for personal injuries suffered by her when an automobile in which she was riding as a guest in the city of San Francisco was struck by a Hupmobile sedan driven by Donald O’Brien, an employee of the 'Chronicle Publishing Company. It was alleged in the complaint that the proximate cause of the collision was the negligent operation of said Hupmobile sedan by Donald O’Brien, and that at the time of said accident said automobile was being operated and driven by him as the agent, servant, and employee of the Chronicle Publishing Company. Before trial the case against 0 ’Brien was dismissed without prejudice. A motion for a nonsuit and for a directed verdict made by defendant was denied. At the close of an eight-day trial, a verdict was returned by the jury against the Chronicle Publishing Company in plaintiff’s favor in the sum of $3,231. From the judgment entered thereon, the defendant Chronicle Publishing Company has appealed.

The accident occurred between 11:10 and 11:30 P. M. on the night of January 28, 1937, on Potrero Avenue just south of its intersection with Twenty-fourth Street. Appellant does not deny that the proximate cause of the collision was the negligent operation of the automobile by 0 ’Brien. Appellant does deny that 0 ’Brien, who was employed by it in its home delivery department, as manager of district N, was engaged at the time of the accident in any service for the Chronicle Publishing Company, and insists that there is not sufficient evidence in the record to support the implied finding of the jury that he was at the time and place of the accident acting within the scope of his employment.

Appellant relies upon the fact that the employment of O ’Brien as district manager in the home delivery department required him to perform specific work in connection with the

Respondent while admitting that 0 ’Brien was not performing the specified work of delivering papers to the carriers in his own specified district and during the specified hours which this particular duty required, points out that his duties were not limited merely to the delivery of the newspapers to the carrier boys and reporting to the city circulation manager, but included any act which he might deem desirable for the betterment of the service, such as visiting the carriers under him to school them in their duties, or to encourage them to secure new subscribers, as each district manager had to maintain a certain production record throughout the month. District managers occasionally supervised the collection by the carriers, and if any carrier was delinquent, his district manager was “supposed to go into the matter with him”. The

It is respondent’s position that O’Brien, at the time of the accident, was either engaged in attending to one of these duties which were in fact as much a part of his employment as his regular routine duty of delivering the home delivery papers to his carriers within his district, or that he had been pressed into special service to deliver “extras” bearing news of the settlement of the longshoremen’s strike, which had been tying up the port of San Francisco, to the Bayshore dog tracks, and was on his way to the Bayshore dog tracks when the accident happened. Only O’Brien himself could testify directly as to the mission on which he was engaged at the time and place of the accident, whether he was in fact engaged in a personal mission of his own, or engaged in performing a service for the Chronicle Publishing Company. It appears that he was removed from the emergency hospital to St. Mary’s hospital, and that he thereafter left the state without returning to his employment with the Chronicle Publishing Company. A letter was afterwards received by the city circulation manager from Nevada, but the letter was not preserved, and his whereabout were apparently unknown at the time of the trial. It is obvious that in the absence of the testimony of O’Brien, plaintiff was necessarily limited in attempting to prove the issue of his employment at the time and place of the accident, to proof of facts and circumstances from which an inference of his employment could logically and reasonably arise, and the defendant was likewise limited to proof of facts and circumstances which would logically and reasonably disprove any inference of such employment, the burden in the first instance being upon the plaintiff to establish a prima

The first question to be asked and answered, therefore, is whether plaintiff has initially established a prima facie case with reference to this issue of employment. Section 1958 of the Code of Civil Procedure states that, 1 ‘ An inference is a deduction which the reason of the jury makes from the facts proved without an express direction of law to that effect,” and section 1960 of the same code states that, “An inference must be founded: (1) On a fact legally proved; and (2) On such a deduction from that fact as is warranted by a consideration of the usual propensities or passions of men, the particular propensities or passions of the person whose act is in question, the course of business, or the course of nature.” Two facts were definitely and positively proved and established by plaintiff which in our opinion reasonably warrant the deduction therefrom that O’Brien at the time and place in question was engaged in performing a service for the Chronicle Publishing Company. First: There was affixed to the windshield of O’Brien’s car a “Press Car” card, bearing the owner’s name, the car number and the signed authorization of the circulation manager of the Chronicle Publishing Company, which card according to the testimony of said circulation manager, himself, was to be used by Chronicle employees only while on duty. Second: There was piled up on the rear seat of the Hupmobile and on the floor to the level of the rear seat, four or five bundles of Chronicle newspapers of approximately 100 copies to the bundle, tied around with hemp rope in the manner in which said newspapers are usually wrapped for delivery to the various newsboys and carriers around the city.

The first fact, “legally proved”, upon which respondent justifiably relies to warrant the inference of employment of O’Brien by appellant at the particular time and place was the fact that at the time of the accident, O’Brien was displaying on the lower right-hand corner of his windshield a “Press Car” card on which, under the words, “Press Car”, appeared the words, “San Francisco Chronicle”. Four witnesses, one of whom was Mr. Neish, an employee of the Chronicle, testified that they had seen this “Press Car” card in the lower right-hand corner of the windshield of the Hupmobile immediately after the accident, and although the card

This “Press Car” card, according to the testimony of Mr. Gilroy, circulation manager of the Chronicle, was the official sign put out by the Chronicle and was issued to its employees under strict orders that the signs were not to be used except when the employees were on duty. Appellant attempted to prove that the use of the card was restricted to the immediate vicinity of the Chronicle building, being furnished to the drivers who delivered its newspapers to enable them to secure parking space there. This attempted limitation of the use of the “Press Car” card to the immediate vicinity of the Chronicle building was offset by the testimony of Mr. Maguire, the news vendor for the Examiner at the corner of Twenty-fourth Street and Potrero Avenue, who testified that he frequently saw cars with such signs pass his corner. It should be here stated that although the appellant has consistently spoken of this “Press Car” card as a “sticker” thereby giving the impression that it was permanently attached, and that it was on the car at all times irrespective of whether the driver was or was not on company business, there is not an iota of evidence in the record to indicate that such card was in fact permanently attached to the windshield of O’Brien’s car, whether by pasting or by any other means. None of the witnesses who testified to seeing the card was able to remember how it was attached. We have examined the “Press Car” card, which was introduced in evidence as an exhibit and identified as being similar to the card displayed by O’Brien, and there is nothing whatever in the make-up of said card to indicate that it was intended to be permanently affixed. It may be said parenthetically that the fact that the “Press

The second foundational fact upon which respondent justifiably relies as giving rise, in conjunction with the display of the “Press Car” card, to the inference that O’Brien was engaged in a service for the benefit of the Chronicle Publishing Company is the fact that at that time he was transporting four or five or more bundles of Chronicle newspapers tied up with hemp rope as if for delivery. There is some question as to whether the papers contained headlines relative to the settlement of the longshoremen’s strike and bore the word, “Extra” across their face, or whether they did not, but in view of the overwhelming testimony of at least three disinterested witnesses, including Mr. Neish, the Chronicle employee, there can be no question that in fáct there were several bundles of Chronicles tied up with hemp rope in the rear of O’Brien’s car at the time of the accident. These bundles of newspapers disappeared after the accident. Mr. Nicolini, a drayman, who was standing at the corner of Twenty-fourth Street and Potrero Avenue, having just bought an Examiner from the news vendor there when the collision occurred, testified that he looked in the rear of the Hupmobile sedan after the accident through the right-hand door which was open and saw four or five bundles of Chronicle newspapers across the back seat tied with hemp rope and that there was stacked on the floor behind the front seat other bundles to the level of the rear seat. One of the bundles on the floor was broken open. He testified that the headlines on all the papers were identical and had the word “Extra”, the name, “Chronicle”, and “something about the stevedores going back to work”. Mr. Hansen, who was employed in the Purity Store at the corner of Twenty-fourth Street and Potrero Avenue, testified that he saw bundles of newspapers in the rear of the Hupmobile sedan, tied with a rope in bundles of about a foot and a half high, and stated that there were some loose ones on the floor. He looked in through the rear window and saw they were Chronicles but did not notice whether or not the word “Extra” was on the front page. Mr. Gray, a municipal railway motorman, testified that he had gone over to the Hupmobile after the accident, and had noticed that the rear fender “was lower down than usual” over the rear wheel. Mr. Neish, the

We are of the opinion that these two facts, “legally proved”: the existence of the “Press Car” card on the windshield of the automobile which the Chronicle employee was driving at the time, and the presence of such a large quantity of Chronicle newspapers as he was transporting at the time, are quite convincing proof of the active engagement of' such employee in the service of the company, and makes the inference that he was so engaged seem logically much more reasonable than the contrary inference that he was not so engaged.

While it was not possible for the respondent in the absence of O’Brien to positively establish the exact errand on which O’Brien was engaged at the time, and we do not deem this necessary in view of the fact that his duties, other than his routine duty of delivering papers to his carriers, were not limited to any particular time and place, two plausible explanations have been suggested. While appellant has offered evidence which is quite convincing, and if believed by the jury would have compelled the conclusion, that the second explanation of O’Brien’s errand was not the correct one, nevertheless, no evidence at all has been offered to disprove the first explanation. In the absence of such proof, appellant has failed to overcome and dispel the inference which consti

In Engstrom v. Auburn Auto Sales Co., 11 Cal. (2d) 64 [ 77 Pac. (2d) 1059 ], it is stated that “an inference is dispelled as a matter of law when it is rebutted by clear, positive and uncontradicted evidence, which is not open to doubt, even though such evidence is produced by the opposite party. . . . Of course, if the opposition evidence is conflicting, vague or uncertain or is weakened by contradictions or improbabilities, an inference is not dispelled as matter of law.” With this rule in mind, we shall discuss the evidence with reference to the service on which O’Brien was engaged at the time.

The first explanation suggested is that 0 ’Brien was engaged in some duty connected with a pickup of the “returns”. As before noted, there is evidence in the record that one of the duties of a district manager was to pick up and return at the end of the month newspapers which had not been sold by the carriers and that they had to be returned at a special time to be checked in. The day of the accident was Thursday, January 28th, and the next day, Friday, the 29th, according to the records of the Chronicle Publishing Company was O’Brien’s day off. Usually the district managers picked up the “returns”, which took two or three hours, in the morning, but they could be picked up at night. O’Brien was “a good employee and the company was pleased with his work”. Mr. Tennant, city circulation manager, and O’Brien’s superior, stated that he had observed him on various occasions around the office at odd hours and that it was a fair statement that he seemed quite wrapped up in the newspaper business and enthusiastic about his job. On the evening in question, Thursday, January 28th, he had seen O’Brien at the office when he, Tennant, left at 6:15 P. M. If the testimony of Mr. Lown that the newspapers which he found on the floor of the Hupmobile the next morning after the accident bore various dates just previous to the accident be accepted as proof that these same newspapers were among those present in the car at the time of the accident, the deduction seems reasonable therefrom that O’Brien at the time of the accident was engaged in his duty of picking up “returns”. This seems particularly reasonable in view of the fact that it was so close to the end of the month and the next day was O’Brien’s day off. No proof was offered by the appellant which would disprove

There was also found by Mr. Lown in the glove compartment of the Hupmobile a book of subscription bills, a pad of deposit slips of the Bank of America, having printed at the top “The Chronicle Publishing Company, Carriers Account, at San Francisco-Main Office, Branch No. 66, Deposited by Route No.-”, and also a rubber stamp bearing this notation, “Pay to the Order of Bank of America, For Deposit to the credit of The Chronicle Publishing Company, Carriers’ Account, 66”. However, as it is quite probable that these articles were kept by 0 ’Brien in the compartment at all times, their mere presence would not be sufficient to give rise to an inference that he was on his way to contact a carrier with reference to his collections. The same criticism, however, is not applicable to the presence of the large quantity of newspapers, tied up in bundles, as it does not appear reasonable that in the absence of some task for his employer, he would be carrying them around in his car.

The second explanation is that O’Brien was pressed into service to deliver extras bearing news of the settlement of the longshoremen’s strike to the Bayshore dog tracks. This explanation is based primarily upon the testimony of Mr. Nieolini that the newspapers which he saw in the rear of the Hupmobile bore the headlines “Extra” and contained news about the stevedores going back to work. That he was endeavoring to reach the Bayshore dog tracks before the races were over and the “crowd broke” would afford some explanation of his erratic driving and breakneck speed, as the races usually closed around 11:10 and 11:15 P. M. While O’Brien’s routine job permitted him to leave the Chronicle building at 3 P. M. there is no testimony as to the time he actually did leave the building on the night in question, and the testimony of the city circulation manager was that O’Brien was there when he left at 6:15 P. M„ Potrero Avenue is on the direct route to the Bayshore dog tracks. While the appellant denied using “relays” or extra men to deliver their bundles of papers when their regular delivery men were not available there was testimony of the Examiner news vendor at the corner of Twenty-fourth Street and Potrero Avenue that infre

The appellant claims to have produced evidence which as a matter of law completely dispels any inference that O’Brien was delivering extras to the Bayshore dog tracks at the time in question. This proof is the testimony of their press foreman, Mr. Wooster, testifying with reference to the pressroom records of the night in question to the effect that the first edition published that night which was an extra and which contained any news with reference to the settlement of the strike, was the COCO edition which bore “Extra" across its

Certainly this testimony, if accepted as true, compels the conclusion that O’Brien was not engaged in delivering strike extras. Obviously, however, the jury did not accept it at its face value, and we cannot say as a matter of law that its rejection was wholly unwarranted. In testifying with reference to the printing of the various editions on that particular night, Wooster testified that the times of printing the various editions were as follows:

C ..................................5:26 to 6:10 p. m.

CC .................................8:06 to 8:40 p. m.

CC* ................................9:27 to 9:40 p. m.

CCC...............................10:25 to 11:15 p. m.

CCCC .............................12:04 to 12:11 p. m.

CCCC* ..............................1:29 to 2:24 a. m.

CCCC** .............................2:30 to 3:58 a. m.

Certain minor points are raised by appellant in which we find no merit. Appellant complains that the trial court erred in giving an instruction to the effect that the jury could find in accordance with an inference which they might reasonably make from circumstantial evidence even though direct evidence to the contrary has been introduced by the defendant. It is not the rule that a jury must accept as true all direct evidence offered in opposition to an inference. If the direct evidence to the contrary is not clear, positive, uneontradicted, and is not. free from doubt, the jury is entitled to reject it. The instruction is, therefore, not subject to criticism.

The appellant also complains of the misconduct of the attorney for the respondent in asking Mr. Gilroy, circulation manager of the Chronicle, if the company did not require O’Brien to carry insurance on his car. The question of whether the witness should answer the question was argued without the presence of the jury, the objection thereto was sustained, and the question was not answered by the witness. It is to be noted that the question was directed only to the ascertainment of whether insurance was carried by O’Brien, against whom the action had been dismissed, and not whether, insurance was carried by the Chronicle Publishing Company. The asking of such question, relative to the insurance carried by a third party, was not such prejudicial error as to warrant a reversal of the judgment.

The judgment is affirmed.

Carter, J., Shenk, J., Gibson, J., and Edmonds, J., concurred.

Rehearing denied.