Brokaw v. Black-Foxe Military Institute

Citation231 P.2d 816,37 Cal.2d 274
Decision Date25 May 1951
Docket NumberBLACK-FOXE
CourtUnited States State Supreme Court (California)
PartiesBROKAW v.MILITARY INSTITUTE et al. (two cases). L. A. 21508.

Tripp & Callaway and Hulen C. Callaway, all of Los Angeles, for appellant.

Robert J. Sullivan and Lewis L. Clarke, Jr., Beverly Hills, for respondents.

CARTER, Justice.

Defendant Hollywood Commercial Buildings, Incorporated, doing business as Black-Foxe Military Institute (hereinafter termed the school), appeals from a judgment on a jury verdict assessing damages against it for personal injuries suffered by a student of the school.

The injuries arose out of a collision which occurred off the school grounds between an automobile driven by one Elvin Martin, in which the student was riding, and a truck. Two related but separate actions were filed and were consolidated for trial. The first action, brought by the sutdent, Robert Brokaw, a minor, through his guardian ad item, was based on a charge of negligent driving, and named as defendants, the driver of the truck, the driver of the automobile, the owner of the automobile, and (on a master-servant theory) the school. In the second action, the student (by this guardian ad litem) and his mother sued the school on the theory of negligence in allowing the student to leave the school premises, or negligent failure to suprevise. A motion for nonsuit was granted in favor of the truck driver, without objection by plaintiffs. The jury made a special finding that Martin, the driver of the automobile in which the student was riding, was acting as agent of the school and in the course and scope of his authority at the time of the accident. A consolidated (single) verdict for $10,000 against the school was rendered in favor of the student and his mother. No verdict was rendered either for or against Martin. As ground for reversal the school (herein-after sometimes termed defendant) urges that the evidence wholly fails to support a finding that any negligence chargeable to it contributed proximately to the student's injuries. It urges that it was not negligent in permitting Robert to leave the school grounds with Martin, and that if it was, such negligence was not the proximate cause of the accident. That contention need not be discussed as we believe the judgment may be supported on the theory that Robert was injured as the result of Martin's negligence in the operation of the car and that he was acting within the scope of his employment by the school at the time of the accident. In the connection it is asserted that Martin was not negligent and he was not the agent of the school.

It was an established practice of the school to conduct organized outings on Saturdays for the boys, which they were free to attend or not, at they wished. The boys did not pay a special transportation charge for the school's station wagons ordinarily used on the outings, but did have to pay for any amusements or refreshments from their own spending money. Martin was a young college student just under twenty-one years of age who worked part-time at the school; one of his duties was to take the students on certain of the Saturday outings. He also acted as teacher and counselor, and as dormitory and athletic supervisor. On the Saturday of the accident he had been off duty, but shortly before noon had come to the school in an automobile owned by his father to pick up some belongins. On that day Robert and certain other boys had not gone on the school's regular organized outing to Long Beach because they lacked spending money. When Martin learned of this he offered to lend them spending money, take them to his mother's home in Whittier for lunch, and then take them to Long Beach to join the other boys. They went with Martin to the officer in charge, who was the only person authorized under the school rules to permit them to leave the school grounds, and secured permission to go with Martin by the specified route. The boys did not pay Martin for their transportation and did not discuss the matter. En route to Whittier in the automobile owned by Martin's father the collision took place.

Turning to the school's contention that the evidence does not support the jury finding that Martin was the school's agent at the time of the collision, it appears athat Lt. Redmond was in charge at the school when the request was made of him by Martin and the boys that they boys be permitted to go with Martin to his home and then to the place of the regular Saturday outing. Redmond testified that he was the officer in charge on that day; that a young student like Robert is not allowed to leave the grounds unless he is 'in the charge of a responsible person'; as to what transpired when the arrangement was made with Martin he said: 'I know Mr. Martin said something about it to me and mentioned he was going to his mother's at Whittier and have lunch, and was from there going to Long Beach and would have the children back that evening. I am not too positive, but I am quited sure that I did request him to be back by 8:00 o'clock or before because they were leaving in the morning. I felt a day's outing was sufficient without staying out too late.' He knew Martin as a colleague at the school. There had been a regular scheduled trip for the boys that day for an 'outing.' Although Martin did not take the boys on the instant Saturday outing, in was one of his duties on every other Saturday. The foregoing is sufficient from which the jury could have inferred that Martin was the agent of the school in taking the boys on that occasion. True, it was not a regular scheduled outing, but it was in lieu thereof. When Redmond permitted Martin to take the boys it may be inferred, he being an instructor at the school, that he was authorized as such employee to do so. The school refers to testimony that the trip had no connection with the school activities (probably the conclusion of the witnesses); that he received no pay for it; that he was not on duty at the time; that he was on a trip of his own; that he was driving his own car, and the like. That creates nothing more than a conflict in the evidence. While it may be that an inference might flow therefrom that Martin was acting merely as a matter of accommodation, that does not require a reversal, as the existence of agency is generally a question of fact, and 'Whether he was such agent was an issue sharply contested at the trial, and was to be determined by the court upon a consideration of the entire evidence respecting the course pursued by him during the negotiations, rather than upon any specific testimony by him or by the defendant as to the fact (of agency); and the inference which the trial court might reasonably make from such evidence is entitled to the same consideration as its finding of a fact upon contradictory evidence.' Willey v. Clements, 146 Cal. 91, 96, 79 P. 850, 851. See, also, Ferroni v. Pacific Finance Corp., 21 Cal.2d 773, 135 P.2d 569; 1 Cal.Jur. 696-697, 865. Hathaway v. Siskiyou etc. School Dist., 66 Cal.App.2d 103, 151 P.2d 861, cited by the school is clearly distinguishable. There the issue was whether a school pupil was the agent of the school, when by permission of the school principal, she was absent from school to advertise a non-school carnival. Here Martin was an employee of the school and it was in general line of duty to take boys on outings and he was authorized to take them on the fateful trip.

There is substantial evidence of Martin's negligence in driving the car, and that such negligence was a proximate cause of the accident. Cruz A. Uribe was driving a truck upgrade east on Fourth Street, in Los Angeles, at 20 miles per hour. The engine was missing and he pulled next to the curb in the extreme right lane and drove half the length of his truck off of Fourth Street through an opening in the curb and stopped. Martin was also driving east on Fourth Street in the same traffic lane to the rear of the truck. According to Martin, he was travelling 25 to 30 miles per hour, and the truck was going slower and stopped when Martin's car was several car lengths behind it. Martin's car ran into the truck. He admitted that he was going too fast to stop. While he was approaching the truck he was explaining and pointing out to the boys a bridge which was there being constructed and telling them to look at it. There is evidence that Martin's car did not slow down prior to the impact. The jury could have concluded that Martin was not keeping a proper lookout ahead or was travelling too closely behind the truck.

It is claimed that the jury exonerated Martin, and therefore, the verdict against the school cannot stand, as its liability must rest upon the doctrine of respondeat superior. See Bradley v. Rosenthal, 154 Cal. 420, 97 P. 875; Fimple v Southern Pacific Co., 38 Cal.App. 727, 177 P. 871. It does not appear, however, that there was a verdict for Martin. The jury's verdict was for Robert and his mother and against the school. That is tantamount to no verdict with respect to Martin....

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