Royal Finance Co. of California v. Miller, 6240.

• Decision Date: 16 February 1931
• Docket Number: No. 6240.,6240.
• Citation: 47 F.2d 24
• Parties: ROYAL FINANCE CO. OF CALIFORNIA v. MILLER.
• Court: U.S. Court of Appeals — Ninth Circuit

47 F.2d 24 (1931)

ROYAL FINANCE CO. OF CALIFORNIA v. MILLER.

No. 6240.

Circuit Court of Appeals, Ninth Circuit.

February 16, 1931.

Lasher B. Gallagher, of San Francisco, Cal., for appellant.

Liggett & Liggett, of San Diego, Cal., for appellee.

Before RUDKIN and WILBUR, Circuit Judges, and SAWTELLE, District Judge.

WILBUR, Circuit Judge.

This is an appeal from a judgment of $5,122 damages for personal injuries suffered by May Miller, the appellee, as result of an accident which occurred while she was riding in an automobile driven by George Irving on a highway between San Diego, Cal., and a real estate subdivision known as Kentwood in the Pines, about sixty-four miles east of said city. The appellee alleged in her complaint that the accident resulted from the negligence of the driver, and that he was acting for and on behalf of the appellant at the time and place in question; that the appellant was conducting a real estate business and engaged in selling land in a subdivision in Kentwood in the Pines, and that she was being transported by the appellant in the automobile of George Irving as a prospective customer for property in said tract. The appellant denied that George Irving was acting as its agent, and alleged in a separate defense that the accident was unavoidable. At the trial appellee called George Irving, the driver of the car, as her witness, and it appeared from his testimony that he was engaged by the appellant primarily for the purpose of delivering a lecture to the prospective purchasers who had been conveyed by the appellant to the tract in question, and that after his lecture, setting forth the advantages of the tract, sales agents of the appellant would endeavor to consummate sales of land in said tract to said prospective purchasers. He was paid for this service $50 a week, and used his own automobile in getting to and from the tract. It was his custom, when the automobiles of the appellant were loaded to their capacity, to transport to the tract such customers as he was requested by the appellant to transport. On the day of the accident he was given the names of the appellee and of another lady, Mrs. Manning, appellee's friend, by the manager of the San Diego agency of the appellant, and he proceeded to the residence of Mrs. Manning, and thence to appellee's residence, for the purpose of transporting them to the subdivision in question. This testimony was undisputed. Mrs. Manning testified that she had invited the appellee to go with her to the tract in question at such time as transportation could be arranged, and that she had not been asked to extend that invitation by the appellant. From this it is contended by the appellant that the appellee was a guest of Mrs. Manning. It reasonably appears, however, from the evidence that Mrs. Manning, after extending the invitation to the appellee, informed the appellant of that fact and that the officers of the appellant directed George Irving to transport both ladies to the scene of their real estate activities.

The driver of the car and both ladies testified to the fact of the accident and the manner of it. It appears therefrom without dispute that the machine was proceeding along a paved highway in the daytime, and that the machine was driven, or ran, off the edge of the pavement, proceeded a short distance with the left wheels on the pavement and the right wheels on the dirt shoulder of the road, until a culvert was encountered; that the right front wheel of the automobile dropped into the ditch; that the machine suddenly stopped and the appellee was thrown against the machine and her arm broken and she suffered the injuries for which she claims compensation. The appellee and Mrs. Manning both testified that the driver, having difficulty in keeping his straw hat on because of the wind, took off his hat. With one hand on the wheel and the other holding his hat, he reached back to place the hat in the back part of the coupe, and in doing so he took his eyes off the road and the machine proceeded not more than two or three times its length when the accident occurred. The driver testified that a sudden gust of wind blew his hat from his head; that he involuntarily raised his hands from the steering wheel, but quickly replaced them, and found that, although the car was drifting strongly to the right side of the road, he was unable to turn it back because of the jamming of the steering gear. The car proceeded off the road, that he ran over some of the rocks that had been placed along the highway at its edge, and finally came to the culvert where the accident happened, as heretofore described.

Aside from the appellant's contention that the driver of the car was not its agent, the principal contention throughout the case was with reference to the degree of care required of the driver by the law of California. This question is presented in the assignments of error by objections to certain instructions which will be hereinafter considered. Before discussing the subject of instructions we will dispose of a preliminary question which arose during the introduction of the evidence.

George Irving testified to the hereinbefore stated facts relating to his employment, and upon his direct examination by the appellee stated that he was licensed as a real estate salesman employed by the appellant. A motion was made by the appellant to strike this testimony out on the ground that the license itself was the best evidence. Under the law of California real estate salesmen are required to procure a license from the state authorities, and it was with reference to such a license that the witness was testifying. The court did not rule upon the motion when presented, but the appellee undertook to secure the better evidence demanded by calling the deputy state real estate commissioner for the state of California, residing in San Diego, who produced the records of his office and testified that it appeared from those records that a license had been issued to George Irving as a real estate salesman for the appellant. This evidence was also objected to as not the best evidence. The objection was overruled; the court failed to rule upon the previous objection as to the testimony of the witness himself as to the license. It appeared from the testimony of the witness Irving that the certificate, or license, issued to him had been returned by him to the office of the deputy real estate commissioner for the purpose of securing a new license for the next ensuing year, and that the license had never been returned to him. It was also shown that the old license itself was not in the custody of the deputy state real estate commissioner. The state of California provides that official records are prima facie evidence of the facts stated therein. Cal. Code Civ. Proc. §§ 1920, 1926. It would seem that the evidence was admissible, and that the objection that the entry in the books of the commissioner was not the best evidence of the contents of a certificate or license was sufficiently met by the fact that the certificate had probably been destroyed, and that therefore the entry was the best available evidence. Inasmuch as the testimony of the witness that he was acting for and on behalf of the appellant was not denied, and the further fact that the question of whether or not he was licensed as a salesman is wholly...