Leming v. Oilfields Trucking Co.
| Decision Date | 22 April 1955 |
| Citation | 282 P.2d 23,51 A.L.R.2d 107,44 Cal.2d 343 |
| Court | California Supreme Court |
| Parties | , 51 A.L.R.2d 107 Harvey LEMING, Plaintiff-Respondent, v. OILFIELDS TRUCKING COMPANY, a corporation, and Phoenix Construction Company, a corporation, Defendants-Appellants. L. A. 23272. |
Baker, Palmer & Wall, Claude F. Baker and Jack W. Bradly, Bakersfield, for appellants.
Oscar F. Catalano and A. V. Falcone, Bakersfield, for respondent.
Defendants-appellants herein are Oilfields Trucking Company and Phoenix Construction Company, two corporations, hereinafter called, respectively, Oilfields and Phoenix. They appeal from a judgment in plaintiff's favor, entered on a jury verdict, in his action to recover for personal injuries suffered in a trucking accident. The judgment now on appeal was rendered on a second trial of the action. The driver of the tractor and trailer which caused the injuries, one Mason, was also named as a defendant, and on the first trial judgment was recovered against him as well as against Oilfields and Phoenix. That judgment became final against Mason, but on motion of Oilfields and Phoenix a new trial was granted as to them and they are therefore the sole defendants involved in the present appeal from the judgment which followed the new trial. We have concluded that, contrary to defendants' contentions, the evidence is sufficient to support the verdict, no error prejudicial to defendants occurred in instructing the jury, the verdict is not as a matter of law excessive, and the judgment should be affirmed.
At a late evening hour on Tuesday, July 10, 1951, as plaintiff, a truck driver, was standing between two trucks which were parked, one in front of the other, along the curbing of a street in Bakersfield, a tractor and trailer driven by Mason along the same street struck the rear one of the parked trucks, causing it to strike and injure plaintiff. Plaintiff's action against the two defendant corporations is predicated upon the allegation that at the time of the accident Mason was operating the tractor and trailer 'as agent and employee and within the scope of authority and agency of his employers, Phoenix * * * and Oilfields. * * * As grounds for reversal defendants urge (1) insufficiency of the evidence to support the jury's implied finding that at the time the accident occurred Mason was acting within the scope of either an employment or agency relationship, (2) error in instructing the jury, and (3) excessive damages awarded under the influence of passion or prejudice.
Viewing the evidence in the light most favorable to plaintiff-respondent, as is required when sufficiency of the evidence to support the findings is challenged (Richter v. Walker (1951), 36 Cal.2d 634, 640, 226 P.2d 593; In re Estate of Bristol (1943), 23 Cal.2d 221, 223, 143 P.2d 689), it appears that the two defendant corporations are enterprises of the Phoenix brothers, of Bakersfield. Harry Phoenix was president of Oilfields and vice president of Phoenix. Percy Phoenix was president of Phoenix and vice president of Oilfields. The business of Oilfields was trucking or hauling for hire, and that of Phoenix was construction. The corporations conducted their operations from a base comprising an area of 8 to 9 acres mutually occupied by them some 2 or 3 miles south of Bakersfield, on which they maintained in common their respective offices, shops, yards, garages, warehouses, storerooms, equipment and appliances.
Prior to May 21, 1951, the two corporations entered into a written contract with the Division of Highways of the State of California by which they agreed to do certain road resurfacing referred to as the Haypress Canyon or Bena job and located some 18 to 30 miles east of Bakersfield. This contract was made by the corporations as joint venturers, they were so designated therein, and an officer of each corporation confirmed that 'that was a joint venture between' Oilfields and Phoenix. The two corporations 'together as joint venturers' posted a performance bond with the State for this job. They had previously engaged as joint venturers on highway jobs, and the purpose of the joint ventures was to enable them 'to pool the resources of the two corporations' in order to qualify to bid for construction jobs in higher amounts. Oilfields owned some 170 trucking units and employed about 90 truck drivers. Early in June, 1951, Butler, its personnel superintendent, hired Mason, a former employe, as a truck driver. He assigned Mason to the Haypress Canyon job for the duration thereof as driver of tractor No. 382 combined with a trailer on which was mounted a cement spreader required for the work. Both the tractor and the trailer were owned by Oilfields, and the cement spreader was owned by Phoenix.
Defendants' yards, located on the west side of Highway 99, south of Bakersfield, were operated on a 24-hour schedule with dispatchers on duty day and night for dispatching drivers and trucking equipment. The evidence was not specific as to whether or not Mason was subject to the usual dispatching routine, which included written dispatch orders and a daily master 'truck movement sheet' on which were listed the name of truck and of driver, number of the truck, and purpose or destination of the trip. Mason operated the cement spreader which accompanied tractor No. 382, to which he had been assigned, at the Haypress Canyon job from Monday through Friday of each week, working an average of 10 hours a day. He was the sole and exclusive driver and operator of this piece of equipment while he was on that job. Trucks bringing bulk cement to the job would arrive from 3 o'clock in the morning on, and Mason's work included having the cement spreader ready at that time and assisting in unloading the trucks and loading the spreader. He slept at the job site in a convertible bed in his own automobile. He was the only employe of defendants who remained at the job site overnight. Two foremen and a superintendent of defendant Phoenix, who were in charge at the job site, knew of this practice. Each Friday night Mason would drive tractor No. 382 and the spreader equipment from the job site back to defendants' yards for servicing, and would pick it up again about 4 o'clock Monday morning and return to the job.
On Friday night, July 6, 1951, Mason drove the equipment to the Bakersfield yards as usual, and returned it to the job in the early morning of Monday, July 9. Because a breakdown of the pug mill at the job had interrupted cement spreading work, Mason took the equipment back to defendants' yards in the afternoon of the same day (Monday). About 5 p. m. of the following day (Tuesday, July 10) the job superintendent notified the dispatcher at the yards to get Mason and the spreader equipment back on the job. The dispatcher was unable to locate Mason, and requested Oilfields' personnel superintendent, Butler, to do so. Butler located Mason at a cafe about 6 p. m., and in Mason's words 'told me to be at the Haypress Canyon job the following morning * * * about 5:00 o'clock * * * (and) to have the truck out there in the morning, ready to go to work with the cement mixer, spreader.' Butler testified that he did not 'take any memorandum of any kind to Mason * * * (but) went to give him verbal orders.' Mason left the cafe and drove around for a time in his own car, with one Smith and two girl friends; he had one drink of vodka mixed with orangeade during this time. About 9:30 p. m. Mason and his three companions arrived at defendants' yards. Mason went to the Oilfields area and took tractor 382, which he had been using, and moved it to the Phoenix area, where he hooked up the trailer and cement spreader. He also arranged for Smith to drive Mason's car to the job site and meet Mason there. He then drove the spreader equipment out on the highway without notifying the dispatcher of his intended departure. He was going to take it to the job site so it would be there the following morning when the bulk truck arrived. As he proceeded on his customary route from yards to job site, he drove into the rear end of the parked truck, injuring plaintiff.
With respect to the extent of supervision exercised over Mason in his work, Butler, the personnel superintendent who assigned Mason to the Haypress Canyon job, testified as follows:
Mason stated that 'I was my own boss there,' and also testified as follows:
'
Esponda, who was shop foreman for Oilfields and was on duty in the yards at the time Mason took the equipment out just before the accident, testified that although he saw Mason leaving and tried to stop him, 'the only reason * * * (I was) trying to stop this truck was because no clearance lights were burning on the trailer, * * * It wasn't because he didn't have any business with that equipment' and that the witness did not see Mason hook the cement trailer onto the tractor although Mason The witness further stated that he knew Mason 'belonged to that equipment' and was assigned to it, and that he had never seen 'any dispatch orders on Mason.'
The above recited evidence is manifestly sufficient to support the implied finding of the jury that Mason was acting...
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