Edwards v. Freeman

• Decision Date: 28 December 1949
• Citation: 34 Cal.2d 589,212 P.2d 883
• Court: California Supreme Court
• Parties: EDWARDS v. FREEMAN. S. F. 17994

Page 883

212 P.2d 883

34 Cal.2d 589

EDWARDS v. FREEMAN.

S. F. 17994.

Supreme Court of California

Dec. 28, 1949.

C. Ray Robinson, Margaret A. Flynn, Merced, Lucius Powers, Jr., Fresno, for appellant.

Dearing, Jertberg & Avery, Fresno, for respondent.

SCHAUER, Justice.

Plaintiff appeals from a judgment rendered pursuant to a verdict for defendant in an action for personal injuries. The injuries resulted from a collision between a pick-up truck driven by defendant and an automobile which was owned and driven by plaintiff's adult son and in which plaintiff was riding. Conflicting evidence, which need not be summarized, would support a determination that plaintiff's injuries were proximately caused by the negligence either of plaintiff's son or of defendant, or by the simultaneous negligence of both drivers. Plaintiff herself was guilty of no contributory negligence and the jury were so instructed. She contends that the trial court erred to her prejudice by submitting to the jury the question whether plaintiff's son was her agent so that his contributory negligence, if any, would bar her recovery. With this contention we agree.

The evidence relied upon to show agency is as follows: Plaintiff's son, Ray Edwards, testified that on the day before the accident 'I just happened by (plaintiff's home, which was about half a mile from the home of Ray), and she asked me would I be dropping into town sometime. She said next time I was going she'd like to go in to have her eyes tested. I told her, 'Well, I'm going in the next morning to have my arm (which was bandaged) undressed. '' Plaintiff testified, 'Q. Why were you coming to town? A. I was coming to make an appointment to have my eyes tested to get some eye glasses. Q. When did you determine to do that? A. Oh, I had been intending to do that quite a while. The day before, the day before I came I seen the boy and asked him was he going; when he was aiming to come into town again. I told him whenever he come I wanted to come with him. He says, 'Well, I am going tomorrow.' to make an appointment for my glasses.' On the morning of the accident Ray picked up his mother at her home. Before they reached the city which was their destination, the accident occurred.

To permit a finding of agency upon this evidence would be, in effect, to hold that one who performs a mere favor for another, without being subject to any legal duty of service and without assenting to any right of control, can be an agent. This is not the law. 'Agency is the relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.' (Restatement, Agency, § 1.) 'The principal must in some manner indicate that the agent is to act for him, and the agent must act or agree to act on his behalf and subject to his control.' (Id., Comment on Subsection 1.) In the absence of the essential characteristic of the right of control, there is no true agency and, therefore, no 'imputation' of the driver's negligence to the passenger. (Tousley v. Packfic Electric Ry. Co. (1913), 166 Cal. 457 462, 137 P. 31; Marchetti v. Southern Pac. Co. (1928), 204 Cal. 679, 681, 269 P. 529; Thompson v. Fitzgerald (1928), 205 Cal. 563, 568, 271 P. 1072; Peri v. Los Angeles Junction Ry. Co. (1943), 22 Cal.2d 111, 127, 137 P.2d 441.) To paraphrase the pertinent language of Stoddard v. Fiske (1917), 35 Cal.App. 607, 609, 170 P. 663, 664, there was no evidence of any employment of the son by the mother; it is clear that the son undertook what he did in order to be of assistance to his mother and as an act of friendship or filial regard; 'The doctrine of respondeat superior sought here to be invoked * * * must necessarily be based upon a relationship between two parties by which one has the legal right to direct the activities of the other and the latter the legal duty to submit to such direction.' And, as said in the Marchetti case, supra (204 Cal. at page 681, 269 P. at page 530): 'The negligence of the driver of a machine * * * cannot be imputed to a passenger therein, in the absence of any evidence showing that the latter exercised some control over the driver or that he possessed the power to supervise or direct the manner in which the automobile should be operated. * * *'

A case quite similar to the one at bar is De Soto v. Pacific Electric Ry. Co. (1920), 49 Cal.App. 285, 286, 288, 193 P. 270. From the opinion it appears that (49 Cal.App. page 286, 193 P. page 271) 'plaintiff on the night of the accident was riding in an automobile belonging to her brother-in-law whom she had requested to convey her, as a matter of friendly accommodation, to a nearby store. She exercised no control over the driver of the machine other than to indicate the place to which she desired to be transported. Under these conditions the journey was made to the store, and it was upon the return therefrom that the accident happened.' It was held that as a matter of law (49 Cal.App. page 288, 193, P. page 272) 'under the relationship shown to exist between the plaintiff and the driver * * * the facts were undisputed and a conclusion irresistibly indicated that no responsibility was fixed upon the appellant (plaintiff) for any act of negligence committed by the driver * * *.' (See also Bryant v. Pacific Electric Ry. Co. (1917), 174 Cal. 737, 739-740, 164 P. 385; Irwin v. Golden State Auto Tour Corp. (1918), 178 Cal. 10, 14, 171 P. 1059.)

Defendant relies upon the following cases in support of his contention that the jury could infer an agency relationship from the evidence that plaintiff was riding with her son at her request: Gates v. Pendleton (1921), 184 Cal. 797, 802, 195 P. 664; Maberto v. Wolfe (1930), 106 Cal.App. 202, 206, 289 P. 218; Navarro v. Somerfeld (1939), 35 Cal.App.2d 35, 38, 94 P.2d 623; Graf v. Harvey (1947), 79 Cal.App.2d 64, 69, 179 P.2d 348; Souza v. Corti (1943), ...