Naudack v. Canini

This is an action to recover damages for personal injuries sustained by respondent, who, while walking across Vine Street at its intersection with Fountain Avenue was struck by an automobile which was being oper

The action was originally brought by respondent and her husband, who were subsequently divorced, and the case continued by respondent alone, resulting in two trials in each of which the jury returned a verdict in favor of the said respondent. Defendant Canini defaulted, but upon the first trial the question of damages to be assessed against him was submitted to the jury, and after motion for judgment notwithstanding the verdict was denied, judgment was entered, for the sum of $15,000 in favor of respondent and against defendant Canini and appellant oil company. Thereafter, a new trial was granted as to appellant oil company upon the ground of insufficiency of the evidence.

Upon the second trial, which was begun a year later and after the judgment against defendant Canini had become final, appellant objected to proceeding with said trial and made two motions to dismiss, one on the ground of lack of diligence on the part of respondent in prosecuting the action after appellant’s motion for new trial was granted, and the other on the ground of “prejudice to appellant on the state of the record and the nature of appellant’s liability”, both of which motions were by the court denied. Appellant's motions for directed verdict, for judgment notwithstanding the verdict and for new trial were also denied, and judgment was entered in favor of respondent and against appellant for $15,000 which is the amount of the judgment recovered in the first trial. This appeal is prosecuted by appellant oil company from the judgment entered against it in said second trial upon the following grounds:

1. The court erred in overruling appellant’s objection to proceeding with the second trial and denying its motion to dismiss the action because of the state of the record and the nature of appellant’s liability under the doctrine of respondeat superior;

2. The evidence is insufficient to sustain the implied finding that the driver of the automobile was acting as agent of appellant within the scope of his employment at the time of the collision;

3. The evidence is insufficient to sustain the finding of negligence implied in the verdict;

5. The court erred in giving certain instructions to the jury.

In connection with its first point, appellant contends that while it is provided by section 579 of the Code of Civil Procedure that “In an action against several defendants, the court may in its discretion, render judgment against one or more of them, leaving the action to proceed against the others, wherever a several judgment is proper’’, under the rule of respondeat superior, a several judgment is not proper against the master. It argues in support of this theory that the judgment rendered against defendant Canini, the employee, which was based upon the verdict of the jury assessing damages against him in the amount of $15,000, together with the granting by the trial court of appellant’s motion for a new trial, ipso facto foreclosed said appellant upon the second trial from going into the extent of the injuries and amount of respondent’s damage resulting therefrom, because the same judgment must be rendered against the master and the servant when the liability of the master is based upon the doctrine of respondeat superior.

Over a thousand pages make up the reporter’s transcript of the second trial of this action, an examination of which instantly reveals the fact that the trial court did not limit appellant in this regard, but permitted it to conduct a full inquiry as to the extent of respondent’s injuries and the amount of damage which she sustained by reason thereof. Moreover, the court considered this element in its instructions to the jury, and as a matter of fact the verdict which the jury returned in the second trial was for the same amount as the verdict which was rendered in the first trial. There is no showing that appellant was prejudiced in any way by a denial of its motion to dismiss and the overruling of its objection to proceeding with the second trial, especially in view of the fact that the second trial was granted pursuant to appellant’s own motion for new trial.

The following facts were developed by the evidence adduced at the trial and will be used in discussing appellant’s second, third and fourth points. On Sunday evening, September 24, 1933, respondent after visiting with friends in the neighborhood walked with them to the northeast corner

As to the status of the defendant Canini, it appears that he was employed as advertising manager for appellant Sea

In August and during the early part of September, 1933, appellant oil company decided to place a new gasoline on the market which was to be known as “Silver Gull”, a name conceived by defendant. During September, defendant prepared a prospectus and an analysis of a general scheme for advertising and merchandising this new product and delivered it to Mr. Winslow Bushnell, said sales manager. Defendant had various other advertising data, books and pamphlets which he wished to study with a view to perfecting his analysis, which were located at an address where he stopped when in Los Angeles. On Friday, September 22, 1933, defendant left his office in Summerland to make his customary week-end trip to Los Angeles, for the avowed

It was shown that on both Saturday and Sunday defendant Canini spent a great deal of time going over his advertising data, books and material at his room at 922 So. Kingsley Drive, Los Angeles; that he called upon his fiancee both Saturday and Sunday evenings, and that on Sunday night, September 24, 1933, around 9 o’clock he took his brief case and advertising data, including the company’s prospectus for the new Silver Gull gas campaign and departed from his room on Kingsley Drive, preparatory to starting his drive to his office at Summerland. Owing to the fact that he had ascertained that a fog was blowing in over the coast route, he changed his course from that to the inland route via Ventura

There was evidence introduced to the effect that when defendant was expected to work on Saturday or Sunday, or was to leave Summerland on business for the company, excepting to go to Santa Barbara, he was to obtain instructions or permission from either Winslow Bushnell, sales manager, or J. F. Bushnell, general manager of appellant oil company, before undertaking to do such work or before leaving Summerland. It was also shown that defendant had an arrangement in writing with appellant whereby on Saturday mornings while in Los Angeles on his own private business, he would make calls upon firms there who supplied advertising materials to the appellant, and that when such calls were required, he would charge the company 7^ per mile for the use of his car from his room in Los Angeles to such places of business, as well as the expense of parking and telephoning in connection with such calls. Several definite written memorandums of this arrangement appear in evidence in defendant’s own handwriting, commencing with calls made by him in January, 1933, immediately after he went to work for appellant, and continuing throughout the year. No memorandum of expense was introduced in evidence covering the particular week-end here in question.

It was also shown that on September 16, 1933, defendant had tendered a written resignation to Winslow Bushnell, who had asked defendant to reconsider his action, and a few days before the accident occurred, defendant' had assured said Bushnell that he would continue his employment with the said company until a successor could be found and trained. In the middle of December, 1933, such successor was employed, and after acquainting him with the work to be done, defendant severed his connection with appellant company on Decern

Under the facts and circumstances presented by the record, it was a question of fact for the jury to determine whether or not defendant Canini was acting within the scope of his employment at the time the accident occurred. The evidence upon this issue is in direct conflict, the officers of appellant corporation testifying that said defendant was not engaged in company business during his week-end trips to Los Angeles, while defendant testified that on the particular week-end in question he was directly engaged in working out the details of the campaign to introduce appellant’s new product “Silver Gull” gasoline to the motoring public. Defendant admitted that he spent the evening of Saturday and also of Sunday with his fiancee, but testified he was on his way back to his office at Summer land when the accident occurred, and that later that night he actually stopped there leaving his brief case and other data concerning the said campaign.

“It is the established rule in this jurisdiction that where the servant is combining his own business with that of his master, or attending to both at substantially the same time, no nice inquiry will be made as to which business the servant was actually engaged in when a third person was injured ; but the master will be held responsible, unless it clearly appears that the servant could not have been directly or indirectly serving his master.” (Ryan v. Farrell, 208 Cal. 200 , 204 [ 280 Pac. 945 ] , citing Brimberry v. Dudfield Lumber Co., 183 Cal. 454 [ 191 Pac. 894 ] ; Kruse v. White Bros., 81 Cal. App. 86 [ 253 Pac. 178 ] ; May v. Farrell, 94 Cal. App. 703 [ 271 Pac. 789 ] ; Dennis v. Miller Automobile Co., 73 Cal. App. 293 [ 238 Pac. 739 ].)

Again in Barton v. McDermott, 108 Cal. App. 372 , 384 [ 291 Pac. 591 ], it is stated: “Generally speaking, the question whether a deviation from the strict course of an agent’s duty is so material or substantial as to amount to a complete departure from the scope of the agency, is a question of fact. ’ ’ It therefore appears that the jury having found in favor of respondent and against appellant in both trials, this court is bound thereby.

With respect to appellant’s third point that the evidence is insufficient to sustain the implied finding of defend

A conclusion that defendant ought to have seen respondent in time to avoid striking her may be derived from the circumstance that other persons saw her at a distance AArhieh would have been sufficient to enable defendant to prevent the calamity. (2 Cal. Jur. Supp. 369.) In the circumstances, the conclusion is irresistible that defendant failed to maintain a proper lookout for pedestrians. The evidence is amply sufficient to sustain the implied finding that defendant negligently operated his machine at the time and place in question.

As to the question of contributory negligence of respondent, it appears that under the more recent decisions of the courts of this state that question must be deemed to be one of fact for the determination of the jury. “It cannot be said that a person is guilty of contributory negligence merely because he attempts to cross a street when an automobile is approaching. If that were so he never could attempt to cross a street upon which automobiles are being operated, and consequently where there is almost always an approaching machine. He has a right to expect that those operating automobiles upon a public street will operate them in the manner and at the speed customary at the particular place. Whether such a person is guilty of contributory negligence in attempting to cross a street in front of an approaching automobile would depend upon all the circumstances under AAdiich he acted. This question is one for the determination of the jury or the trial court and their finding thereon is binding upon an appellate court. (Scott v. San Bernardino Valley, etc., 152 Cal. 604 [ 93 Pac. 677 ] ; Clark v. Bennett, 123 Cal. 275 , 277 [ 55 Pac. 908 ] ; Schneider v. Market Street Ry. Co., 134 Cal. 482 , 488 [ 66 Pac. 734 ].) ” Flach v. Fikes, 204 Cal. 329 , 332 [ 267 Pac. 1079 ].

The judgment appealed from is affirmed.

Doran, J., and White, J., concurred.

A petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on February 10, 1939.