*1 A. No. 18702. In Bank. Jan. [L. 1944.] al., Respondents, ELSIE LOPER et E. MOR v. CAMERON FARMS, (a RISON al., Defendants; et ARDEN INC. Corporation), Appellant.
Russell Pray, Henry H. F. Walker, S. J. Nordorf and William C. Appellant. Price for
Joseph Ball, A. Albert D. White and Kenneth Sperry for Respondents. GIBSON, C. J. Loper (hereafter Mrs. Elsie plain called
tiff) brought and her husband damages this action for re sulting from an automobile accident in which a car driven by Loper Mrs. by operated was struck by one defendant Morrison, employee an Farms, defendant Arden Inc. From judgment against defendants, both Arden Farms, (here Inc. after defendant) called alone appealed. has employed by defendant to make deliveries of milk dairy products other designated area, within a to collect from customers and to solicit new business. De- liveries were made in a truck furnished defendant, but Morrison used in collecting his own car accounts and solicit- ing new regular business after hours.
On the afternoon of the accident Morrison left defendant’s office his own car to prospective call on a customer and to collect delinquent a account from a Mrs. He was Hanson. accompanied by Dolan, Edward a employee, fellow to whom he had offered a ride home. After calling on the new cus- they tomer went to the Hanson p. residence about 4:00 m. but found no one there. The Hanson account had been de- had made numerous Morrison time, and
linquent for some from He had learned it. attempts to collect unsuccessful to at home likely Hansons past experience that the were again about 5:30 decided to call evening, he later in the and Morrison, return, waiting Hanson to p. m. for Mrs. While a to breakfast, with Dolan went not eaten since who had of sandwiches home for a lunch Dolan’s tavern near happened The accident took Dolan home. beer, and then Dolan’s returning from Morrison, p. about 5:30 m. while Dolan Hanson account. home, way to collect was on his by the milk miles outside the area covered lived about two Morrison reached route, occurred before and the collision route. boundaries of his that Morrison was not
Defendant contends the acci within his at the scope was owed argued that the Hanson account First, it is dent. attempting to that in collect personally to Morrison customers engaged same he in his own business. Certain by defendant were approved not whose credit had been required accounts.” Drivers were classified as “unauthorized liability protect defendant and furnish bond to to assume pay to the failure of such customers by from losses caused liability attach, did how products not for sold them. Such terminated, ever, employment of the driver was until after the one-third Approximately total of $100. limited to a Hanson, route, including Mrs. of the customers Morrison’s Hanson, had who been were “unauthorized accounts.” Mrs. time, defendant long $25 of Arden for a owed a customer Although Morrison con when Morrison took over the route. by her, made dairy products collections tinued deliver old and credited on the turned to defendant him were over straight salary no com on a with balance. worked collected was turned over missions, money all the he it to buy He milk from Arden and sell defendant. did money Mrs. Hanson was owed customers. The due from account, Mor attempting and in to collect the to defendant duty imposed employer his performing rison a there is employment. And evidence within Morrison, employer’s knowledge, frequently called to his regular hours, using his car. after own upon customers his finding that he authorized support This is sufficient to type place. at the time the accident took this to do work
605 to con Defendant next contends we are bound clude, left the Hanson law, as a matter when house to take Dolan he business of bis home, abandoned the not employer upon own and had entered a mission his occurred, employer’s re-entered his the accident business when and that of his scope he was not within the therefore employment general rule at the time the accident. The Bros., Cal.App. in these in 81 cases is stated Kruse v. White 86, quoted 93 P. West 178], recently approval with in [253 berg Willde, 360, v. 14 373 P.2d : “Whether Cal.2d 590] [94 there as to has been a deviation material or substantial so complete departure usually of fact. question constitute a a marked, In may some cases the deviation and in others be so slight relatively, say so that the that no court can conclusion departure other than that act not could a reasonably supported; in while others deviation still' may degree be so in uncertain extent of the facts view question and circumstances as to of what inferences make should be drawn properly from the evidence one for the jury.” (See Agency, 228, also Rest., d.) sec. Comment Courts have held employee as matter of that an law scope not employment clearly when the evidence complete showed a (Gordoy Flaherty, abandonment. 9 Cal. v. 538]; 2d 716 P.2d City Angeles, Peccolo 8 Cal. v. Los [72 532 651]; 2d P.2d Kish v. State Automobile [66 California Assn., 190 27]; Stabnau, 246 Cal. P. Martinelli v. 11 [212 Cal.App.2d 38 956]; P.2d Wiseley, Hanchett v. 107 Cal. [52 App. 311]; 230 P. Gousse 41 715 Lowe, Cal.App. v. [290 295].) many P. But other cases it has been held [183 jury question that a (Westberg Willde, presented. v.
14 360 590]; Cal.2d P.2d Waack v. Maxwell Hardware [94 Co., 210 636 966]; Marguez, Cal. P. Cain v. 31 Cal.App. [292 200]; 2d 430 81 Bros., Cal.App. Kruse v. White 86 [88 P. 178]; Dennis Co., Cal.App. v. Miller Automobile 73 [253 293 739]; ed.), P. see Agency (2d Mecham on sec. 1916, p. 1491.) In deciding the case before us results reached in other helpful necessarily decisions are but (See controlling. Waack Co., v. Maxwell Hardware 636, involving P. In each case all of the relevant circumstances must be con weighed sidered and (Waack relation to another. one v. Maxwell 636, 966]; Hardware 210 Cal. P. Cain Marquez, 430, Fiocco Bryan Bunis, N.E. Carver, N.Y. (2d App.Div. Agency N.Y.S. Mechara ed.), 1461-1462, and, generally, 1457-1491; pp. pp. sec. Rest., Agency, 228-237.) Under these authorities the secs. considered, pertinent case, are factors insofar as to this to be his employee, nature, time, place the intent conduct, authority, implied his actual and the work he was *6 do, employer hired to the incidental acts that should of reasonably expected done, have be and the amount would employee performing freedom in allowed the his duties. of this case cannot hold Under circumstances we as a matter of that Morrison’s to the tavern and to trip law employer’s Dolan's home an constituted abandonment his Morrison’s heretofore, business. As said it was within author at ity to collect accounts the time the accident occurred. employer’s The liability necessarily not terminated private pur reason of the that combined a fact employer. As pose the business of stated his own with his Ry Farrell, in an : “It P. is [280 945] jurisdiction that where the servant established rule this master, combining his his or at own business with that of in tending substantially time, no to both at same nice quiry will made as to which the servant was actu business ally engaged injured; person a but when third appears that responsible, clearly master will be unless it held directly indirectly serving not have the servant could been trip on the Thus, Ms master.” if the accident had occurred prior m., jury dairy p. to Hanson home to from clearly within his have found that Morrison could something get to employment although he intended thereafter eat, Further, a from to Dolan deviation and take home. going purposes for these before to the most route direct necessarily an aban Hanson home would not have constituted Willde, 360, 372 P. (See Westberg v. 14 Cal.2d donment. ; Marquez, 2d Cain 590] Gayton v. Express, Cal.App. 50 Fruit Pacific Bros., Cal.App. P. Dennis
Kruse v. White
In
739].)
Cal.App. P.
Miller Automobile
miles
cases, supra,
of several
were
Kruse
Cain
detours
cases, al
deviation
present questions
to
of fact. The
held
involved, here
though
situation
not identical with the
home, be
analogous. Morrison,
finding no one at
quite
upon
that would
over an hour before he
lieved
he
have to wait
could
spent
see Mrs. Hanson.
If he had
this time in his car in front
have
within
the house he would
remained
employment.
going
His conduct
for some
elsewhere
private purpose
waiting
perform
specific
while
his
duties
presented
question
entirely
a
as to
he
fact
whether
had
employer.
(See
business of his
Robertson v.
abandoned the
Spitler,
might
employer
at the time the of accident.
Defendant also contends that trial court in the erred excluding portion from evidence a a hospital chart called of a “nurses’ record.” The chart contained entries nurses relative to plaintiff during the condition of the the time she spent in hospital the accident, after the and was offered to testimony refute as to the nature and extent plaintiff’s of injuries. Defendant the contends record should have been admitted under sections 1953e-1953h of the Code of Procedure, Civil known as “Uniform Business Records as Evidence Act.” Section 1953f provides: “A record of an act, event, condition or shall, relevant, so far as com- be petent evidence if the custodian qualified or other witness testifies its identity and the of preparation, mode its and if regular it was made business, course at or near if, act, event, opinion or in the condition time of court, information, method time of
of the sources of preparation justify Section were such as to its admission.” article provides: 1953e “The term ‘business’ as used this every business, profession, occupation, shall include kind of for calling institutions, carried on operation whether profit 1953g requires that “This article or not.” Section gen interpreted shall and construed as to effectuate its be so those purpose eral uniform which to make law States enlarge enact The of this act is to purpose it.” hearsay operation exception of the business records exception The is evidence rule. common law based kept general in the assumption records course usually accurate, used, are may case of business (Hale, Hospi matter necessity, as evidence of the recorded. 99, But the Evidence, 100.) tal Records as So.Cal.L.Rev. exception hedged many about has been with so burdensome legislation necessary has been restrictions that to secure wide desirability of spread Speaking such use of records. Court, legislation, Supreme in the similar the United States 477, Hoffman, recent of Palmer 318 U.S. S.Ct. case 481, 645, 719]), several L.Ed. stated: “The A.L.R. supra, years history (Wigmore, behind the Act hundred 1517-1520) the reforms which sees. indicate nature of liberally inter designed It should course be effect. preted away as to do with anachronistic rules which so gave need at aimed.” rise to its and which it was entry to entries
The business statutes are limited hospital records enterprises, properly in commercial (Ulm Mo operation. their or e-McCormack included within Co., 125 Lines, 492; Borucki v. MacKenzie Bros. F.2d Marron, Beverley Club, ; Beach Inc. v. Conn. 92 A.2d 224] Hudnutt, Gile 279 Mich. Md. 471 A. John Hancock Mutual Ins. Conlon v. N.W. Life VI, Wigmore A. see on Evidence R.I. (3d A.L.R. 36; 104; ed.), p. sec. So.Cal.L.Rev. is 731.) hospital that a record There is no reason to believe kept by It not as truthful as a record a commercial firm. *8 patient based, treatment of the upon a record which (See trustworthy. experience it has shown to reliable 439, Indemnity Reinhart, Globe Co. v. Md. discussion in object 43].) It of is the the business A. calling of each wit necessity eliminate the to records statutes the transaction event. ness, the record of and to substitute making entry have necessary person It the is not that & personal (Storm Butts knowledge of the transaction. Patrick Tetz 567];
Lipscomb, Cal.App. P.2d Bonding laff, & Cal.App. P. Massachusetts 934, 937.) Plain Ins. Norwich Pharmacol F.2d Co. v. support tiff cases in of its contention cites several California (Estate hospital in that records are not admissible evidence. Paterson, 50 Flint, P. Pierce of Prukop, 116 Cal. Lusardi v. App. All cases of these were tried before state, Act are not Uniform became effective in this controlling. provides
The Uniform Act that com record is petent if in man prescribed evidence authenticated .if, ner and “. in opinion court, . of the sources information, method as preparation were such to justify (Code Proc., 1953f.) its admission.” Civ. De sec. argues fendant that in presented foundation this case justify was sufficient to the admission record nurses’ in evidence that to therefore error for the was court it. It is unnecessary, however, exclude for to determine us whether trial justified rejecting court was the record grounds these opinion since preju we no error dicial to the defendant has been shown its exclusion. Before judgment this court can improper reverse a for ex evidence, clusion of an examination entire cause must complained miscarriage show that the error in a resulted justice. (Cal. Const., VI, testimony 4y2.) art. sec. The which the nurses’ was record offered refute was the ef fect that plaintiff while hospital she suffered from many painful headaches and spots, bruises and sore that she hysterical, given nervous and pills and.that she help sleep her to pain. and to ease her The nurses’ record this does refute many evidence. In fact notations in the chart testimony. support plaintiff’s Those notations show plaintiff that frequent had headaches pain and suffered from parts body, various that nervous, of her she was and that given she quantity a considerable of sedatives and other drugs. argues Defendant other notations the chart to the effect plaintiff not complain, did or that she was *9 and sleeping, pain refute evidence
comfortable, resting or
complaints” as it was used here
entry “no
suffering. The
suffer, nor that she
plaintiff did not
that
does not indicate
A
complain
pain
of her
and nervousness.
witness
did not
that
chart testified
authenticate the
by defendant
to
called
to make
kept
nurse
the chart
of the
who
practice
it
was
nothing special was re-
entry
complaints” whenever
“no
charge
And
by
patient.
nurse in
of the
ported
to her
rested,
that
was com-
slept or
and
she
plaintiff
notations that
specific
as
do not contradict
evidence
times,
fortable at
suffering. Therefore,
the nurses’ chart
while
her
pain
to
evidence on
issue of the nature
contained relevant
injuries,
say that
we cannot
its exclusion
plaintiff’s
extent of
miscarriage
justice.
in a
resulted
though
contends further
that even
full
Defendant
testimony
by plaintiff, the
given the
introduced
credence be
awarding plaintiff $2,000
$600
and her
judgment
husband
court
appellate
An
will not disturb
verdict
was excessive.
immediately suggest
grossly excessive as
it is so
unless
corruption
part
jury.
or
on the
passion
prejudice,
Kimmerle,
(Loeb
Stan
College
Chiropractic,
Angeles
hope
Los
spent twenty-six days
Plaintiff
141, 148 [128
injury
Her
her much
and suf
pain
caused
hospital.
in the
mental,
was at the hos
both
while she
fering,
physical
Doctor and hospital
after she went home.
bills
pital Dopers'
money
expended
repair
was
$400, and
exceeded
carry
plaintiff
was unable to
automobile. For some
her husband with his
This
helping
business.
her usual duties
justify
amount awarded.
is sufficient
evidence
guilty
that
the trial
is contended
court was
It
Many
judge
misconduct.
of the trial
prejudicial
remarks
erroneous,
only
assigned as
but
two were
claimed to- be
these remarks
made to de
the trial. Both of
were
error at
rulings
on the
attorney
connection with
admissi
fendant’s
They
not be
as
bility of evidence.
could
construed
indicat
any
plaintiff
way partial
ing
judge
that the
toward
if
case,
jury
specifically instructed that
and the
or her
anything
he
done
which indicated that
judge had said or
disregarded.
it
party,
either
should be
inclined to favor
argues
giving
that the court erred
cer
Defendant
respondeat superior.
dealing
These
tain instructions
with
already found
theory
have
properly
instructions
we
stated
applicable in
further claims
this case.
Defendant
give
defining
improperly
the court
refused to
instructions
“scope
stating the rule that
employment”
abandon
ment
employee
employer
relieves the
liability.
given
from
But
which
other instructions
were
adequately
subjects.
Defendant also
covered these
dealing
giving
instructions
contends
court erred
damage, because,
claimed,
with
there
no evi
future
*10
testimony,
support
damage.
dence to
There was
how
such
ever,
suffering
that at the
of the trial
still
plaintiff
headaches,
from
pain.
nervousness
This evidence tended
and
prove
in
damages
justify
future
the
sufficient to
(See
County
struction.
City
Bauman
Fran
v.
San
of
cisco,
The
is affirmed.
Shenk, J., Curtis, J.,
J.,
Schauer,
Carter,
J., concurred.
TRAYNOR,
agree
J.
I
ques
I dissent. cannot
that it
ais
tion of fact
whether Morrison was
scope
within the
of his
at the time of the accident.
If the facts
are undisputed
liability
question
it is a
of law whether
arises
(San Diego
Savings
from such facts.
Trust &
Bank v. San
Diego County, 16
94,
Cal.2d
P.2d
Law and Harv.L.Rev. extent jury the court can better than the determine should Company Arden Milk liability vicarious to which subject. d, majority opinion The section comment cites function that it is the Agency, Restatement of states which a servant is within an act of court to determine whether clearly indi- is employment “if answer scope If jury. is for cated,” question but that otherwise the a question however, solely it is undisputed, facts are employment. of the law whether acts are within the is all the complicated If one there question is a law rather by the court more reason that it should be determined jury. than the After present in the case. dispute
There is no as to the facts bill, reaching a place where he was collect home, await the meal, transport left to obtain Dolan undisputed The time for another effort to collect bill. duty to take part evidence that it of Morrison’s shows was no home, merely personal Dolan as a favor. and that he did so home, way The accident on the back from Dolan’s occurred as Morrison’s twenty point from the nearest some blocks signed territory. was return my It that Morrison opinion *11 ing his em personal from a mission and had not resumed ployment at therefore of the accident and was (Gordoy employment. then within the Flaherty, City 538]; P.2d Peccolo v. Los Cal.2d [72 Angeles, State 651]; Kish v. Cal.2d California 27]; Assn., 190 P. Martinelli v. Automobile Stabnau, Hanchett v. Wise ley, 107 Tuxedo Land Cal.App. P. Adams v. Bagley, 113 Helm v. Cal. Cal.App. P. App. 602 P.
Edmonds, J., concurred. rehearing February denied
Appellant’s for a petition rehearing. Traynor, J., for a 17, 1944. voted