Flores v. Brown

• Citation: 248 P.2d 922,39 Cal.2d 622
• Court: United States State Supreme Court (California)
• Decision Date: 09 October 1952
• Parties: FLORES et al. v. BROWN et al. ZAVALA et al. v. BROWN et al. S. F. 18460

Page 922

248 P.2d 922

39 Cal.2d 622

FLORES et al. v. BROWN et al.

ZAVALA et al. v. BROWN et al.

S. F. 18460.

Supreme Court of California

Oct. 9, 1952.

Rehearing Denied Nov. 3, 1952.

James F. Boccardo, David S. Lull, San Jose, and Edward J. Niland, Santa Clara, for plaintiffs and appellants.

Dana, Bledsoe & Smith and Morton B. Jackson, San Francisco, for defendants and appellants.

TRAYNOR, Justice.

On Sunday night, September 7, 1947, on Highway 101 near Madrone, an automobile driven by Herman Flores was struck by a tractor-trailer driven by defendant Brown. Brown owned the tractor, but the trailer was owned by defendant Murray. With Mr. Flores in the front seat of the automobile was his wife, who was holding a baby; in the back, which had been converted into a small truck bed, were their son Felipe (19 years of age), their daughter Anita (14 years of age), and a friend, Nellie Zavala (17 years of age). Mr. Flores, Felipe, and Nellie Zavala were killed; Mrs. Flores and Anita were injured.

As a result of the accident, five actions were filed against Brown and Murray; the first by Mr. Flores and her surviving children for the death of Mr. Flores; the second by Mrs. Flores for her personal injuries; the third by Anita, through Mrs. Flores as guardian ad litem, for Anita's personal injures; the Fourth by Mrs. Flores for the death of Felipe; the fifth by Maria Zavala, mother of Nellie Zavala, for the death of Nellie Zavala.

In each of the actions it was alleged that Brown was negligent and that, in hauling the trailer, he was acting as Murray's agent.

Defendants denied negligence and pleaded contributory negligence. Murray's motions for nonsuits and directed verdicts were denied. The trial court instructed the jury that the contributory negligence of Mr. Flores would bar recovery for his death and would also be imputed to Mrs. Flores to bar recovery for her personal injuries. With respect to the other three actions, the jury was instructed that the defense of contributory negligence of Mr. Flores was not applicable. The jury returned the following verdicts:

1. In the Mr. Flores action, for defendants.

2. In the Mrs. Flores action, for plaintiff in the amount of $5,000 against both defendants.

3. In the Anita action for plaintiff in the amount of $15,000, against both defendants.

4. In the Felipe action, for plaintiff in the amount of $5,000, against both defendants.

5. In the Zavala action, for plaintiff in the amount of $5,000, against both defendants.

The motions of both defendants for judgments notwithstanding the verdicts were denied.

Plaintiffs moved for a complete new trial in the Mr. Flores action and for a limited new trial on the issue of damages only in each of the other actions. Murray moved for a complete new trial in each of the actions except the Mr. Flores action. Brown moved for a complete new trial in the Mrs. Flores action and in the Felipe action.

The trial court granted a complete new trial as to all actions, all parties, and all issues. In doing so he stated that separate consideration of each motion might lead to a new trial only of certain issues in certain actions, with the result that the case would be even more complicated than at the first trial. He also observed that the various verdicts were not unanimous and were in part inconsistent and that they were probably compromise verdicts. He concluded that 'substantial justice' required that the entire case be retried.

There is no appeal from the order granting a complete new trial in the Mr. Flores action, and that order is now final.

There is no appeal from the order granting a complete new trial in the Mrs. Flores action, but Murray has appealed from the judgment. Since the new trial order is now final, that judgment has been finally vacated and the appeal therefrom must be dismissed.

In the remaining three actions, plaintiffs have appealed from the order granting complete new trials. Under the provisions of Rule 3a of the Rules on Appeal, Murray has appealed from the judgment in each of these actions, and Brown has appealed from the judgment in the Felipe action.

Since no question is raised as to the sufficiency of the evidence to support a finding of Brown's negligence or of Mr. Flores's contributory negligence, it is unnecessary to review the evidence relating to the happening of the accident.

Murray contends that there was no evidence that Brown was his employee or agent, and that therefore the trial court erred in denying his motions for judgments notwithstanding the verdicts. The only evidence introduced on this issue was the testimony of Brown and a deposition of Murray. It may be summarized as follows: Both Brown and Murray were in the trucking business and had known each other for many years. Each owned a tractor and two trailers. A few weeks before the accident, Brown had secured a contract to haul pears from Lakeport to Yuba City during the canning season. Since he did not have enough equipment to handle all of the hauling himself, he arranged with Murray to assist him. Murray sent his equipment and a driver from Los Angeles to Lakeport. Brown used Murray's equipment on a trip to trip basis and paid Murray for the amounts so hauled. The job ended about two weeks before the accident, and Murray's driver returned to Los Angeles with Murray's tractor and one trailer, leaving the other trailer in Lakeport. Brown felt obligated to assist Murray in returning this second trailer to Los Angeles, and in a conversation it was agreed that when Brown was next in Lakeport with a tractor he would take the trailer as far as King City, unless Murray had picked it up sooner. Pursuant to this understanding, Brown picked up the trailer at Lakeport, and while he was hauling it to King City, the accident occurred. Brown had business of his own to attend to in Lakeport on the day he picked up the trailer, but he would have made the trip in his automobile rather than in his tractor, had he not planned to take Murray's trailer to King City. No compensation was contemplated or given for this service.

Although it is clear from the foregoing evidence that at the time of the accident, Brown was towing Murray's trailer for the latter's benefit, Brown's negligence may be imputed to Murray only if Brown was acting as his agent or employee. If Brown was hauling the trailer as a mere favor to Murray, or as an independent contractor, negligence may not be imputed. Edwards v. Freeman, 34 Cal.2d 589, 592, 212 P.2d 883; Malloy v. Fong, 37 Cal.2d 356, 370, 232 P.2d 241.

The primary test for determining whether a person performing gratuitors services for another does so as the latter's agent is the same as that applied to determine whether one performing services for compensation does so as an employee or as an independent contractor, and in both situations the determinative issue is whether or not the alleged principal controlled or had the legal right to control the activities of the alleged agent. Edwards v. Freeman, supra, and cases cited; Malloy v. Fong, supra, and cases cited. Accordingly, it is unnecessary to decide whether the jury could reasonably infer that Brown was not acting gratuitously. It need only be determined whether there is any evidence from which the jury could infer that Murray had the right to control the manner in which the job was done.

There is nothing in the evidence of the business relations between Brown and Murray from which that right could be inferred. Both men were independent truckers, and Brown had not in the past been Murray's employee. In fact the evidence indicates that either Brown had employed Murray or engaged him as an independent contractor to haul such loads as Brown wished.

Plaintiffs contend, however, that the jury could infer the right to control from the fact that Brown was towing Murray's trailer with permission for Murray's benefit. It was frequently been held that when one person is driving another's automobile for the latter's benefit an inference of agency may be drawn. Souza v. Corti, 22 Cal.2d 454, 461, 139 P.2d 645, 147 A.L.R. 861; Perry v. McLaughlin, 212 Cal. 1, 14, 297 P. 554; Graf v. Harvey, 79 Cal.App.2d 64, 69, 179 P.2d 348; Cope v. Goble, 39 Cal.App.2d 448, 456, 103 P.2d 598; DuBois v. Owen, 16 Cal.App.2d 552, 556, 60 P.2d 1019. In such cases the right to control may be inferred from the owner's power over the way his automobile should be operated, particularly when he is present on the trip. On the other hand, it is settled that if one person is riding in another's automobile, the right to control may not be inferred merely because the trip is undertaken for the passenger's benefit and the destination is selected by him. Edwards v. Freeman, supra, 34 Cal.2d 589, 592, 593, 212 P.2d 883; Pope v. Halpern, 193 Cal. 168, 174-176, 223 P.2d 470; Bryant v. Pacific Electric Ry. Co., 174 Cal. 737, 742, 164 P. 385; Lowe v. Lee, 95 Cal.App.2d 685, 689, 213 P.2d 767; Cox v. Kaufman, 77 Cal.App.2d 449, 452, 175 P.2d 260; see also, Stoddard v. Fiske, 35 Cal.App. 607, 609-610, 170 P. 663. Similarly, the right to control may not be inferred merely from the fact that one person with his own equipment is transporting another's goods. Clarke v. Hernandez, 79 Cal.App.2d 414, 424, 179 P.2d 834; Preo v. Roed, 99 Cal.App. 372, 380, 278 P. 928; see also, Gaskill v. Calaveras Cement Co., 102 Cal.App.2d 120, 124, 226 P.2d 663; Walton v. Donohue, 70 Cal.App. 309, 314, 233 P. 76. In both of these latter situations in which an owner is driving his own vehicle, the right to control its operations will ordinarily rest with him, and accordingly, in the absence of other evidence, it cannot be inferred that he has surrendered that right by agreeing to carry the person or property of another. The facts of the present case bring it within the foregoing rule. Brown was towing Murray's trailer with his own equipment in carrying out an apparently isolated transaction between the parties, and the fact that he...