284 P. 1062 | Cal. Ct. App. | 1930
Plaintiff had judgment against the defendant Harry A. Nauman in the sum of $750 for and on account of injuries alleged to have been received by the plaintiff by reason of a collision between an automobile in which the plaintiff was riding and an automobile belonging to the defendant Harry A. Nauman, and driven by the defendant Robert Parks, an employee of the defendant Nauman. From this judgment the defendant Harry A. Nauman appeals.
The record shows that on or about the twenty-sixth day of July, 1926, at the intersection of Nineteenth and L Streets in the city of Sacramento, there was a collision between an automobile owned and driven by the plaintiff, and an automobile owned by the defendant Nauman and driven by the defendant Parks. The record shows that for some years prior to the incident just mentioned the defendant Nauman owned and at the time in question was conducting an undertaking establishment at 1811 G Street in the city of Sacramento; that during all the times mentioned in this proceeding defendant Nauman resided at 1712 N Street, being at a place about seven blocks south of his place of business; that Eighteenth and Nineteenth Streets were the ones usually traveled in going from the undertaking establishment to the residence of the defendant Nauman at 1712 N Street. It further appears from the transcript that the defendant Nauman maintained a garage at his undertaking establishment, and also at the place of his residence; that *759 at times the Studebaker car belonging to the defendant Nauman, involved in this action, was kept at the garage maintained at the undertaking parlors, and at times would be kept at the garage belonging to the defendant Nauman and situate at 1712 N Street; that the defendant Robert Parks, an employee of the defendant Nauman, slept at the undertaking establishment. The record further shows that the defendant Nauman usually left his place of residence on N Street to go to the undertaking parlors at about 8 o'clock each morning. It further appears that frequently the defendant Nauman would telephone to Parks, when the Studebaker car was housed in the garage on G Street, to bring the car over to the residence of the defendant Nauman and take the defendant Nauman from his residence to the undertaking parlors. In doing this Parks would drive down either Eighteenth or Nineteenth Street and return by one of said streets. The collision referred to in this action occurred at about 8 o'clock in the morning. During the night previous the Studebaker car had been housed in the garage maintained on G Street in connection with the undertaking parlors. The collision was on Nineteenth Street, being one of the streets used in traversing the distance between the two places mentioned, and one of the streets ordinarily used by Parks when on his way to the residence of the defendant Nauman to pick him up and take him to the undertaking parlors. The ownership of the car is admitted; nor is it disputed that the defendant Parks was in the employ of the defendant Nauman. [1] The only issue tendered in this case is whether the evidence of the defendant Nauman is sufficient not only to rebut the primafacie case made out by showing the ownership of the car involved in the issue and the fact that the defendant Parks was an employee of the defendant Nauman, and the reasonable inferences to be drawn from the circumstances that the defendant Parks, as an employee of the defendant Nauman, was acting in the course of his employment when driving the car southward on Nineteenth Street toward the residence of the defendant Nauman. It is contended on the part of the appellant that the testimony of the defendant Nauman is such as to demand a judgment in his favor; that it is of such a character that the jury was unwarranted in bringing in a verdict in favor of the plaintiff; that the inference *760 to be drawn from the fact of ownership of the car and the general employment of the defendant Parks is so squarely met by the testimony of the defendant Nauman that a conclusion that the defendant Parks was engaged on a mission in the course of his employment for the defendant Nauman is wholly unwarranted.
In the case of Fahey v. Madden,
It is evident from a reading of this testimony that there is no clear, positive evidence on the part of the defendant rebutting the inference arising from the fact of ownership of the car and the general employment of the defendant Parks by the defendant Nauman. To be sure, the testimony is *763 not directly contradicted. However, the testimony is of such a nature that the jury might very well draw the conclusion that the witness had contradicted himself. Again, the circumstance that the employee Parks was driving directly from the undertaking parlors toward the residence of the defendant Nauman, at the hour in the morning when he would usually be driving in that direction for the purpose of picking up the defendant Nauman and taking him to the undertaking establishment, was a matter to be considered by the jury in connection with the testimony of the defendant Nauman, in determining the true facts. Another thing the jury had a right to take into consideration in determining whether the employee Parks was on a mission in the interest of his employer Nauman, on the morning in question, was the leading character of the questions to which he made answer. When questioned by counsel for the plaintiff, the witness testified that he did not know whether he had called Parks on the telephone on the morning of July 26, 1926, and likewise had given the same testimony in a deposition previously taken, but when led by his counsel, he was positive that he had not so telephoned. This presented an issue for the jury to determine as to which statement set forth the truth. If the jury believed the statement of the witness given in answer to questions propounded by counsel for the plaintiff, then and in that case the verdict is amply supported. We cannot, upon appeal, determine that they were wrong in their estimate of the testimony of the defendant; and hence, the requirements set forth in the cases which we have cited and the ones there referred to have not been met so as to justify a reversal. It may be stated that the defendant Parks did not appear upon the trial, and his whereabouts appear to have been unknown to the respective parties, and the cause of action as to him was dismissed.
The judgment is affirmed.
Thompson (R.L.), J., and Finch, P.J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on March 8, 1930, and 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 April 7, 1930.
All the Justices present concurred. *764