278 P. 928 | Cal. Ct. App. | 1929
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *374 In this action the jury found for the plaintiff and against the defendants and assessed plaintiff's damages in the sum of seven thousand five hundred dollars. From the judgment entered upon this verdict defendants have appealed.
The action grew out of a collision which took place between a truck owned by defendant B.A. Roed, which was being operated by his brother, L.A. Roed, and a motorcycle driven and ridden by plaintiff, it being alleged that defendant B.A. Roed was delivering milk of the Jersey Farm Dairy Company, under which name defendant Frank M. Helm, Inc., was doing business, and the damages awarded were for personal injuries received by plaintiff as the result of such collision.
Appellant B.A. Roed has filed no brief, and appellant Frank M. Helm, Inc., in its brief, contends that the judgment should be reversed for the reason that defendant B.A. Roed, whose truck, which was driven by his brother, L.A. Roed, and which collided with the motorcycle driven and ridden by respondent, was not an employee of defendant Frank M. Helm, Inc., but was an independent contractor. Respondent disputes this contention and urges that the evidence and inferences properly deducible therefrom sufficiently support the allegation that B.A. Roed was at the time of the accident in the employ and acting as the servant and agent of appellant Frank M. Helm, Inc., and further urges that the reporter's transcript on appeal — the appeal having been taken under the alternative method — cannot be considered for the reason that the notice of appellant to the clerk to prepare the transcript under the provisions of section 953a of the Code of Civil Procedure was not given *375 within the time allowed by law, and this court is without jurisdiction to avail itself of the reporter's transcript, and, therefore, the clerk's transcript is the only record in the case properly before the court.
[1] This latter contention of respondent is based upon the fact that the notice to the county clerk requesting that the transcript of the testimony, etc., be made up and prepared was not filed with the clerk within ten days after the motion for new trial was denied by operation of law under section
[2] The facts of the case are as follows: Frank M. Helm, Inc., a corporation, was at the time in question transacting business under the name of Jersey Farm Dairy Company, handling dairy products in the city of Fresno. Several years prior to the accident complained of there was an association of dairymen known as the San Joaquin Valley Milk Producers' Association. The Jersey Farm Dairy Company purchased from the San Joaquin Valley Milk Producers' *376 Association milk delivered at its depot in Fresno, and the defendant B.A. Roed, under an agreement made by him with the association, gathered up milk from the various dairymen producers and hauled or delivered the milk to the corporation. The association went out of business, and, instead of having a contract for the purchase of milk from an association, the corporation made separate contracts with the individual dairymen, respectively, and the defendant B.A. Roed continued to haul milk to the depot of the corporation. According to the testimony of J.S. Canham, manager of the corporation, "there are drivers that had their entire route, when we took them on, same as in the case of Roed, and several others." Each contract made by the corporation with the dairymen contained the provisions that the seller agreed to sell and deliver at the buyer's premises all the milk produced from a certain number of cows or from a certain dairy, and that the milk was to be delivered twice each day at the buyer's premises at 1820 Tulare Street, Fresno, California, and that payments for all milk delivered during each month were to be made on the 15th of the following month. The rate paid to defendant Roed, according to his testimony, is fixed by the dairymen. The rate when the association ceased and the corporation took the milk direct from the dairymen was the same as formerly paid by the association, but four or five years ago the dairymen complained and the rate was reduced. The corporation each month paid Roed his delivery charges and paid the dairymen the amount due them for milk delivered after deducting the hauling charges paid to Roed. In a few instances dairymen who had contracts for delivery of milk to the Jersey Farm Dairy Company protested to J.S. Canham, manager of the corporation, that the price of delivery was too high. On each of these occasions Mr. Canham referred them to B.A. Roed and notified B.A. Roed of the protest. If a new customer was secured the manager of the corporation would either tell the driver to call at the new customer's place and get his milk or would tell the dairyman to hail the driver and send his milk in.
From the foregoing facts respondent urges that the inference may be properly drawn that defendant B.A. Roed was the servant of Frank M. Helm, Inc. We question this conclusion. Section 2009 of the Civil Code provides: "A *377
servant is one who is employed to render service to his employer, otherwise than in the pursuit of an independent calling, and who in such service remains entirely under the control and direction of the latter, who is called his master." [3] An independent contractor is one who renders service in the course of an occupation, representing the will of his employer as to the result of his work only and not as to the means by which it is accomplished. (Fidelity Casualty Co. v. Industrial Acc.Com.,
[5] Respondent argues that since the contracts provide that the dairymen will respectively deliver their own milk, and since B.A. Roed did deliver the milk and was paid by Frank M. Helm, Inc. — even though paid from funds belonging to the dairymen — the conclusion follows that the corporation employed B.A. Roed to deliver the milk purchased by the corporation and the jury was obliged to accept the failure of either of these defendants to produce the evidence of a contract between them made for the delivery of the milk by B.A. Roed as strong evidence that such contract, if shown by the evidence, would be adverse to the contention of defendants, and cites section 1963 of the Code of Civil Procedure, providing that certain presumptions are satisfactory, if not contradicted, as follows: "Subdivision 5. That evidence wilfully suppressed would be adverse if produced; subdivision 6. That higher evidence would be adverse from inferior being produced." Respondent also cites from section 2061 of the same code: "That evidence is to be estimated not only by its intrinsic weight, but also according to the evidence which it is in the power of one side to produce and of the other to contradict, and, therefore, that if weaker and less satisfactory evidence is offered, when it appears that stronger and more satisfactory evidence was within the power of the party, the *379
evidence offered should be viewed with distrust." We fail to see the application of these sections to the record here presented.[6] Plaintiff's motorcycle collided with a truck operated by L.A. Roed, which truck was the property of defendant B.A. Roed. Therefore there arose an inference that L.A. Roed was at the time, and in the line or course of his employment, operating the truck as an employee or servant of defendant B.A. Roed, and if in fact he was not then acting as such employee or servant, it devolved upon defendant B.A. Roed to show the status or relationship at the time of the accident, if that inference was to be dispelled (Maupin v. Solomon,
[7] The plaintiff sought to recover against the corporation upon the theory of respondeat superior. The burden, therefore, of proving the relation of master and servant or employer and employee was upon plaintiff. The plaintiff called for cross-examination the manager of the corporation and the defendant Roed; and while showing that the milk was being conveyed by a truck to be delivered to the corporation, and that the compensation to be received by defendant Roed would be handed to him by the corporation, the plaintiff by such witnesses also established the fact that the defendant Roed was not an employee or servant of the corporation, but that he was an independent contractor. It is true that these witnesses were called for cross-examination under section 2055 of the Code of Civil Procedure and plaintiff was not bound by their answers, but their testimony, however, is in no manner refuted by any other witness. *380
The quantum of proof necessary for the plaintiff to produce when relying on the doctrine of respondeat superior is stated in Kish v. California State Automobile Assn.,
Defendant Roed did not take orders from anyone as to the manner of doing the work, or how he was to haul the milk, whether by team or automobile truck, or who was to operate or drive the truck or vehicle. He was responsible only for gathering up the milk, transporting it safely and delivering it at the depot of the corporation within the hours agreed upon by the dairymen and the corporation, and was, therefore, not the servant of the corporation.
Stedman v. Stedman,
As to appellant B.A. Roed, the evidence amply supports the judgment against him, and as against him the judgment is affirmed. It must, however, be reversed as against appellant Frank M. Helm, Inc., and it is so ordered.
Tyler, P.J., and Cashin, J., concurred. *381