Eye v. Kafer, Inc.

• Decision Date: 17 April 1962
• Citation: 202 Cal.App.2d 449,20 Cal.Rptr. 841
• Parties: Virgil Wilmoth EYE, Plaintiff and Respondent, v. KAFER, INC., a California corporation, Appellant, Samuel James Stallings, Jr., and Kafer, Inc., a California corporation, Defendants. Civ. 25849.
• Court: California Court of Appeals Court of Appeals

Page 841

20 Cal.Rptr. 841

202 Cal.App.2d 449

Virgil Wilmoth EYE, Plaintiff and Respondent, v. KAFER, INC., a California corporation, Appellant Samuel James Stallings, Jr., and Kafer, Inc., a California corporation, Defendants.

Civ. 25849.

District Court of Appeal, Second District, Division 1, California.

April 17, 1962.

Schell & Delamer, by Richard B. Goethals, Los Angeles, for appellant.

Ross, Price & Rikalo, by James R. Ross, Canoga Park, for respondent.

FOURT, Justice.

This is an appeal from a judgment in favor of the plaintiff in a case involving a beating administered to plaintiff by a representative of the defendant corporation.

Some of the facts as developed by witnesses and other evidence is as follows: the defendant corporation ran and operated the Crossbow Inn, which was a public restaurant with two bars and a dancing space. On the night of December 22nd and early morning of December 23, 1957, there were several customers in the establishment. The plaintiff, Eye, was what might be termed a regular customer of the place. Anthony J. Ferra, Peter G. Katilavas and Amos Emery Yeigh, were the owners and officers of the defendant corporation. Katilavas was in charge of the inn on the occasion in question. He went upstairs to his office about midnight and remained there behind locked doors until approximately 1:30 a.m., when he was summoned by a waitress to come downstairs. Apparently when Katilavas had left to go upstairs a Robert Polovina was behind the bar serving drinks and collecting money. It was estimated that there were from ten to twenty-five people in the place of business from midnight until 1:30 a.m. It was Katilavas' testimony that he left no one in charge of the bar when he absented himself to go upstairs, that 'friends' were permitted to go behind the bar, mix their own drinks and serve other customers who were 'friends.' He further stated that he did not know that Polovina was tending bar during the one and one-half hours that he, Katilavas, was absent. Samuel James Stallings, Jr. was at the place of business on the night in question. It was alleged in the complaint that Stallings was an employee, agent or servant of the corporation on the occasion. Two women were seated at the bar and conversed with the plaintiff. One of the women asked plaintiff to watch her purse while she went to dance. The plaintiff apparently went to the men's restroom and took with him the lady's purse. Polovina and Stallings pursued the plaintiff into the men's room. There Stallings severely beat the plaintiff and further beat him again outside of the toilet room. It would appear to be the argument of the defendant that the plaintiff was stealing the purse, yet the owner thereof gave no testimony that her purse was stolen, did not direct that anyone go after the purse, and admitted that nothing was taken.

Stallings served drinks and collected money therefor on the night in question and on previous nights he had likewise pursued such a course. Yeigh stated in effect that Stallings was an employee of the inn during a time in December 1957. A payroll check dated December 28, 1957, (five days after the episode in dispute) drawn by the corporation and payable to Stallings showed appropriate deductions for the state and federal withholding taxes. This check was delivered to the plaintiff by Yeigh. A police officer testified that Katilavas had told him with reference to whether Stallings was working at the time in question that '* * * Sam Stallings was employed by the Crossbow to work off a tab, a bill he owed for drinks and food.'

Plaintiff apparently was severely beaten and suffered serious injuries. Doctors testified in his behalf and even though the plaintiff was examined by a doctor selected by the appellant, the appellant did not produce such doctor to testify as to the condition of Eye. Medical and hospital bills of plaintiff amounted to approximately $4,468.99. His loss of earnings was approximately $3,500.00.

Stallings originally was sued as a defendant, however the service of process on him was quashed and at the time of the trial the corporation was the only defendant. Stallings did not appear as a witness.

The jury returned a unanimous verdict in favor of the plaintiff for the sum of $50,000.00.

Appellant asserts among other things that Stallings was not an employee or agent of the corporation and therefore the defendant was not responsible for his action; that even if Stallings was an employee the altercation was not within the scope of employment; that reversible error was committed in excluding evidence to show bias and prejudice of a certain witness; that the business records of defendant were improperly excluded from evidence and that the trial court should have granted the motion for a new trial upon the grounds of insufficiency of the evidence, excessive damages and errors at law.

There is no doubt a great deal of testimony in the record which, had it been believed, would have been sufficient to establish that Stallings was not an employee or agent of the defendant. The jury, however, obviously did not believe the defendant's witnesses in all matters. There is evidence (which the jury obviously took as being the truth) which establishes that the plaintiff was an employee or agent of the corporation at the times in question. It is not the responsibility or prerogative of this court to determine the credibility of the witnesses. (See Primm v. Primm, 46 Cal.2d 690, 299 P.2d 231; Nichols v. Mitchell, 32 Cal.2d 598, 197 P.2d 550; Crawford v. Southern Pac. Co., 3 Cal.2d 427, 45 P.2d 183; People v. Blankenship, 171 Cal.App.2d 66, 340 P.2d 282; Sullivan v. Dunnigan, 171 Cal.App.2d 662, 665, 341 P.2d 404; People v. Barnett, 159 Cal.App.2d 22, 29, 323 P.2d 96.)

An inference to the effect that Stallings was an employee of the corporation can be drawn from the statement of Katilavas (an officer of the corporation and the person in charge of the inn on the night in question) to the police officer to the effect that Stallings 'was employed by the Crossbow to work off a tab, a bill that he owed for drinks and food.' (See Robinson v. George, 16 Cal.2d 238, 105 P.2d 914.)

One of the tests of whether an employer-employee relationship exists is whether there is the right of control. In 32 California Jurisprudence 2d 406, section 9, it is stated:

'The right of control is the essential characteristic of the employment relationship. The test, however, is whether the employee is subject to control, not whether such control is being exercised at any particular moment, though control is not always sufficient by itself to establish a master and servant relationship. To establish the relationship of master and servant the control must extend not just to the employment to which the contract relates, but to all its details. The test requires complete control, or the unqualified right to direct and control the details of the work or the means by which the work is to be accomplished. The existence of the right of control is often tested by determining whether, if instructions were given, they would have to be obeyed.'

It was not absolutely necessary for the plaintiff to establish that Stallings received payment in dollars for his services. The evidence indicated that Stallings served drinks, collected money and did other work in and about the place of business and whether it was for a stated sum in money is not the crucial point involved. See Bonetti v. Double Play Tavern, 126 Cal.App.2d Supp. 848, 274 P.2d 751 and California Labor Code section 350 to the effect that it is not necessary that an employee receive monetary compensation.

Furthermore the appellant could have been held responsible under the theory of an ostensible agency. See American Law Reports, Second Series 984, 992, where in quoting from Haluptzok v. Great Northern R. R. Co., 55 Minn. 446, 57 N.W. 144, 26 L.R.A. 739, it is said: "It is enough to render the master liable if the person causing the injury was in fact rendering service for him by his consent, express or implied." From the evidence the jury could well have inferred that Katilavas when he went upstairs for an hour and a half expressly or impliedly gave consent to Stallings to perform the duties or services of a bartender.

There can be but little doubt that the evidence is clear that Polovina was an employee at the time in question. Polovina, in answering the question at the time of trial 'And then you yelled to Samuel Stallings to get the purse' testified, 'I yelled to the effect, I said 'somebody has got that woman's purse.'' The question was then asked, 'And you yelled at Sam Stallings who was right there?' and Polovina answered, 'He was standing there. I couldn't say if I yelled at him or not.'

In Bank of California v. Western Union Telegraph Co., 52 Cal. 280, it was held in effect that if an agent employs a subagent without authority of the employer, the employer nevertheless is liable for the willful fraud of the subagent. In this particular case it is interesting to note that Polovina apparently did nothing to stop the beating which was being applied to Eye by Stallings.

It is a question of fact from the evidence and particular circumstances of each case whether an employee was acting in the course of his employment at the time of a particular episode. (See De Mirjian v. Ideal Heating Corp., 129 Cal.App.2d 758, 278 P.2d 114.) In this case the evidence in our opinion is sufficient to establish that Stallings was in the general course of his employment at the time of his beating of the plaintiff. (See De Rosier v. Crow, 184 Cal.App.2d 476, 7 Cal.Rptr. 540; Haworth v. Elliott, 67 Cal.App.2d 77, 153 P.2d 804.)

During the trial a Rosemary Sexton testified for the plaintiff. She stated in part that Stallings had told her and her husband that he was a partner or part owner of the place of business, and that he had been fired; furthermore that he had brought drinks to her and...