Brokaw v. Black-Foxe Military Institute, BLACK-FOXE

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

Page 816

231 P.2d 816
37 Cal.2d 274
BROKAW

v.
BLACK-FOXE MILITARY INSTITUTE et al. (two cases).
L. A. 21508.
Supreme Court of California, in Bank.
May 25, 1951.

[37 Cal.2d 275] Tripp & Callaway and Hulen C. Callaway, all of Los Angeles, for appellant.

Page 817

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 [37 Cal.2d 276] 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 [37 Cal.2d 277] 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

Page 818

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...

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45 practice notes
  • Van't Rood v. County of Santa Clara, No. H023716
    • United States
    • California Court of Appeals
    • November 20, 2003
    ...42 Cal.App.4th 1702, 1710, 50 Cal.Rptr.2d 323.) Agency is generally a question of fact. (Brokaw v. Black-Foxe Military Institute (1951) 37 Cal.2d 274, 278, 231 P.2d 816; Violette v. Shoup (1993) 16 Cal.App.4th 611, 619, 20 Cal.Rptr.2d 358.) Where conflicting evidence of agency is presented,......
  • Simon v. San Paolo U.S. Holding Co., Inc., No. B121917.
    • United States
    • California Court of Appeals
    • December 2, 2003
    ...has waived any error in the form of the special verdict, by failing to object to it. (Brokaw v. Black-Foxe Military Institute (1951) 37 Cal.2d 274, 280, 231 P.2d 816.) We therefore decline the A cause of action for promissory fraud requires proof of an unperformed promise, made about a mate......
  • Cavallaro v. Michelin Tire Corp.
    • United States
    • California Court of Appeals
    • August 17, 1979
    ...of the latter but merely a failure on the part of the jury to find upon all the issues. (E. g., Brokaw v. Black-Foxe Military Institute, 37 Cal.2d 274, 279, 231 P.2d 816, and cases there cited; Irelan-Yuba etc. Min. Co. v. Pacific G. & E., 18 Cal.2d 557, 570, 116 P.2d 611.) However, plainti......
  • Clarendon Nat. Ins. v. Insurance Co. of the West, No. 1:99-cv-5461-SMS.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • July 7, 2006
    ...513 P.2d 353. VI. Agency The existence and scope of an agency is generally a question of fact, Brokaw v. Black-Foxe Military Institute, 37 Cal.2d 274, 278, 231 P.2d 816 (1951), unless the essential facts are undisputed and subject to only one inference, in which case it is a question of law......
  • Request a trial to view additional results
45 cases
  • Van't Rood v. County of Santa Clara, No. H023716
    • United States
    • California Court of Appeals
    • November 20, 2003
    ...42 Cal.App.4th 1702, 1710, 50 Cal.Rptr.2d 323.) Agency is generally a question of fact. (Brokaw v. Black-Foxe Military Institute (1951) 37 Cal.2d 274, 278, 231 P.2d 816; Violette v. Shoup (1993) 16 Cal.App.4th 611, 619, 20 Cal.Rptr.2d 358.) Where conflicting evidence of agency is presented,......
  • Simon v. San Paolo U.S. Holding Co., Inc., No. B121917.
    • United States
    • California Court of Appeals
    • December 2, 2003
    ...has waived any error in the form of the special verdict, by failing to object to it. (Brokaw v. Black-Foxe Military Institute (1951) 37 Cal.2d 274, 280, 231 P.2d 816.) We therefore decline the A cause of action for promissory fraud requires proof of an unperformed promise, made about a mate......
  • Cavallaro v. Michelin Tire Corp.
    • United States
    • California Court of Appeals
    • August 17, 1979
    ...of the latter but merely a failure on the part of the jury to find upon all the issues. (E. g., Brokaw v. Black-Foxe Military Institute, 37 Cal.2d 274, 279, 231 P.2d 816, and cases there cited; Irelan-Yuba etc. Min. Co. v. Pacific G. & E., 18 Cal.2d 557, 570, 116 P.2d 611.) However, plainti......
  • Clarendon Nat. Ins. v. Insurance Co. of the West, No. 1:99-cv-5461-SMS.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • July 7, 2006
    ...513 P.2d 353. VI. Agency The existence and scope of an agency is generally a question of fact, Brokaw v. Black-Foxe Military Institute, 37 Cal.2d 274, 278, 231 P.2d 816 (1951), unless the essential facts are undisputed and subject to only one inference, in which case it is a question of law......
  • Request a trial to view additional results

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