Kruse v. White Bros.

Appeals by defendants from a judgment entered on a verdict for the plaintiffs in an action to recover for personal injuries.

Meyer, who resided in Oakland, was there employed as a salesman for the corporation, a dealer in hardwood lumber, with its place of business in San Francisco. According to the testimony his working hours commenced at 8 A. M. and ended at 5 P. M., it being his duty during those hours to solicit orders for his employer, for which purpose the automobile was furnished by the latter. The automobile when not in use was kept in a garage in the possession of Meyer, the employer making a money allowance for this service. Some days before the date of the accident—which occurred on November 23, 1921, at about 6 P. M.—Bruce Bartholomew, who wished to purchase a quantity of hardwood lumber, communicated his wants to Meyer, and the testimony tends to show that it was the intention of the latter on the evening of the accident to call at the Bartholomew residence, which was situated at Colusa Avenue between San Pedro and Tacoma Avenues, one block southwest of the Alameda. At about 5 P. M. on that day Meyer drove the automobile from the yard of a lumber company, to which his duties had taken him and which was situated several blocks south and west of the Bartholomew residence, to a point several blocks east and south of the yard mentioned. He there by previous arrangement met Miss Kaeha Ingram, who also resided on Colusa Avenue, but four blocks northwest of the Bartholomew residence. Meyer testified that, accompanied by her, he drove back over the same route to Milvia Street, which runs north from the route previously traversed, followed this street to Hopkins Street and thence

To prove that there was no diversion from the direct route to the latter residence plaintiff sought to show by certain physical conditions that, contrary to the testimony of Meyer and his companion, he reached Yosemite Avenue by a route to the east of the Alameda and Lovers’ Lane. On the evening of the accident, which was dark, vision being made more difficult by a thick fog, the plaintiff, who was proceeding to her home, in attempting to cross from the southwest

[1, 2] While, as contended by Meyer, it was the duty of the plaintiff to use ordinary care for her own safety, her rights in the street, although not superior, were equal to his, and her testimony, if believed by the jury, was sufficient, in view of the circumstances, to sustain the finding that in pursuing the course shown she was not wanting in ordinary care. As stated, Meyer was a salesman, and while it appears from the testimony of officers of the corporation that he had been instructed that the auto should be used only for business purposes, it further appears from that of the sales manager that the latter knew that the order was not being strictly followed. The automobile was at all times in Meyer’s possession, and he was not forbidden to use it for business purposes after his regular hours, nor to permit others to accompany him while so using it. He was given a wide discretion as to his movements, not being restricted—

[3] In Gousse v. Lowe, 41 Cal. App. 715 [ 183 Pac. 295 ], —where it appeared that it was the duty of a servant to drive his employer’s automobile from a garage to the home of the latter four blocks to the west, but who drove the car on a mission solely his own to a point two and one-half miles to the east, a collision occurring while returning to the garage—-it was held that the act of the servant was not within the scope of his employment, following the general rule there stated that if a servant abandons or departs from the business of the master and engages in some matter suggested solely for.his own pleasure or convenience, or pursues some object which relates to an end or purpose which may be said to be the servant’s individual and exclusive business, and while so engaged commits a tort, the master is not answerable (Ki sh v. California State Auto Assn., 190 Cal. 246 [ 212 Pac. 27 ]). To exonerate the master, however, it is essential that the deviation be for purposes entirely personal to the servant (39 Cor. Jur., p. 1297, Master and Servant, sees. 1493, 1494); and a deviation will be regarded as immaterial if the latter combines his own business with that of the master or attends to both at substantially the same time (Brimberry v. Dudfield Lumber Co., 183 Cal. 454 [ 191 Pac. 894 ]). [4] A mere deviation from the strict course of his duty does not release the master from liability. In order to have that effect it must be so substantial as to amount to an entire departure (39 Cor. Jur., p. 1297, Master and Servant, see. 1493). As the rule has been stated, “One does not cease to be acting within the course of the master’s employment because his most direct and immediate pursuit of the master’s business is subject to necessary, usual or incidental personal acts, nor even by slight and immaterial delays or deflections from the most direct route for a persosal or private purpose, the pursuit of the master’s business continuing to be the controlling purpose. Such acts, not amounting to a turning aside completely from the master’s business so as to be inconsistent with its pursuit, are often only what might be reasonably expected, to which, therefore, the master’s assent may be fairly assumed; or they are in many instances the mingling with the pursuit

[5] Whether there has been a deviation so material or substantial as to constitute a complete departure is usually a question of fact. In some cases the deviation may be so marked, and in others so slight relatively, that the court can say that no conclusion other than that the act was or was not a departure could reasonably be supported; while in still others the deviation may be so uncertain in extent and degree in view of the facts and circumstances as to make the question of what inferences should be drawn from the evidence properly one for the jury (Healey v. Corkrill, 133 Ark. 327 [L. R. A. 1918D, 115, 202 S. W. 229 ]; Ritchie v. Waller, 63 Conn. 155 [ 38 Am. St. Rep. 361 , 27 L. R. A. 161 , 28 Atl. 29 ]; Gousse v. Lowe, supra; Dennis v. Miller Automobile Co., 7 3 Cal. App. 293 [ 238 Pac. 739 ]).

[6] In the instant ease the evidence was sufficient to show that Meyer was not required to follow certain or fixed routes while engaged in the performance of his duty, and to support the conclusion that acts not amounting to a complete turning aside from the employer’s business so as to be inconsistent with its pursuit were anticipated by the employer; and that deviations from the strict line of his employment, so long as the pursuit of the employer’s business remained the controlling purpose, were tacitly assented to by the latter. ,

In Dennis v. Miller Automobile Co., supra, it appeared that it was the duty of an employee of the defendant corporation to transport packages from its garage to the office of an express company situated fourteen blocks to the west and ten to the north óf the garage; that instead of proceeding to his destination by the usual and more direct route to the west and thence to the north, as an accommodation to other employees, who wished to be transported to their home situated six blocks to the south and eleven to the west of the garage, he proceeded south to the street on which the residence was situated, and thence toward the west, and that when at a point, near the residence an accident occurred. It was there held that the question whether the employee was then acting within the scope of his authority was one for the jury.

[7] Whether the detour made by Meyer on the evening of the accident amounted to an abandonment of the em

It is admitted that the corporation owned the car and that it had been furnished to the employee for use in its business. It might fairly be inferred from the testimony of Meyer and Bartholomew that the pursuit of the master’s business was the controlling purpose of the employee throughout his course, and that the deviation from the direct route was within the rule stated—one which the employer might reasonably be deemed to have anticipated and assented to, and was not such as to amount to an abandonment of the employment.

[8] The court by three of its instructions directed a verdict for the plaintiff in the event the jury found certain facts to be true." Appellant corporation contends that in so doing the court ignored the defense that Meyer at the time of the accident was not acting within the scope of his employment. Two of the instructions referred to provisions of the law requiring the signal device directed to be attached to a motor vehicle to be sounded as a warning of danger, and forbidding the operation of the car without adequate braking equipment; and the third to the care required of the driver. By the first the jury were told that if at the time of the accident the “defendants” violated the first provision mentioned, and by the second and third that if the “defendants” at the time of the accident were operating the car without adequate brakes or without due care as to speed, they should render a verdict in favor of the plaintiff if they further found that the omissions mentioned were the proximate cause of the injury and that plaintiff was not guilty of contributory negligence.

The question presented by the defense mentioned was fully covered by other instructions; and the use of the word “defendants” necessarily implied that the jury must find in connection with the facts specified that the servant at the time of the accident was acting within the scope of his employment.

It is contended that this instruction in effect directed the jury to infer from the admitted facts that the servant at the time of the accident was acting within the scope of his employment. As held, the jury might draw the inference in the absence of proof to the contrary (McWhirter v. Fuller, 35 Cal. App. 288 [ 170 Pac. 417 ]), but are not bound to do so (Davis v. Hearst, 160 Cal. 143 [ 116 Pac. 530 ]; Fahey v. Madden, 56 Cal. App. 593 [ 206 Pac. 128 ]); and an instruction that a presumption arises or that the law infers therefrom that the servant was so acting is a misdirection of the jury (Fahey v. Madden, supra; Albert v. McKay & Co., 53 Cal. App. 325 [ 200 Pac. 83 ]) which, as held in the cases last cited, is a ground for reversal if, as section 4% of article VI of the constitution in effect provides (People v. Chapman, 55 Cal. App. 192 [ 203 Pac. 126 ]; Vallejo & Northern R. R. Co. v. Reed Orchard Co., 169 Cal. 545 [ 147 Pac. 238 ]), it affirmatively appears that the error resulted in a miscarriage of justice. The testimony of Bartholomew tends to prove the fact that an engagement had been made for the evening in question, and this with Meyer’s testimony that he then intended, time permitting, to call on the former was sufficient to support the finding of the jury without the aid of inferences drawn from the admitted facts referred to in the instruction; and Ave cannot say that ‘this finding was based on the erroneous statement that a presumption arose therefrom.

[10] Appellant corporation in its closing brief calls attention to a further instruction given at plaintiff’s request which was as follows: “The inference that at the time of the accident the defendant Meyer was engaged in the business of the

In Hutson v. Southern Cal. Ry. Co., 150 Cal. 701 [ 89 Pac. 1093 ], an instruction was given which stated in substance that the defense of contributory negligence must be proved to the satisfaction of the jury by a preponderance of the evidence. The court in reversing the judgment and ordering a new trial on other grounds said with respect to the instruction that “in a civil case it is the weight of evidence—which is sufficient to establish a fact. As given the instruction might tend to confuse a jury into believing that something more than this was required.” In a dissenting opinion Justice Shaw, referring to the criticised instruction, said: “The court seems to have feared that the words ‘to your satisfaction’ might be understood by the jury to mean ‘beyond a reasonable doubt. ’ But the jury must be presumed to understand words according to their ordinary meaning.”

The court, in Boa v. San Francisco-Oakland Terminal Railways, 182 Cal. 93 [ 187 Pac. 2 ], with respect to a similar instruction given by the trial court, said: “This court has repeatedly decided that an instruction which in substance informs the jury that a party having the burden of proof as to a certain fact or issue must establish it to the satisfaction of the jury by the fair preponderance of the evidence is not reversible error where the other instructions in the case clearly define what is meant by a preponderance of the evidence and distinctly advise them that a preponderance of the evidence will be sufficient to justify a finding in favor of the party having the burden. In such cases it is held that the words ‘to the satisfaction of the jury’ are equivalent to ‘find’ or ‘believe.’ ”

In the absence of an instruction as to the signification given the term “satisfactory evidence” by the code section (Code Civ. Proc., sec. 1835), as said in the Hutson case, supra, “The jury must be presumed to understand the words according to their ordinary meaning.” According to Webster, New International Dictionary, the word “satis

In the instant case the jury was instructed that in civil cases a preponderance of the evidence is all that is required. The meaning of the term was defined; and it was further instructed that if it found from the evidence that at the time of the accident the driver was not performing any work for his employer, but was on a mission of his own, its verdict should be for the appellant corporation notwithstanding that the latter owned the automobile and the driver was its employee.

These instructions were sufficient to correct the impression which the criticised instruction might tend to create, and the latter, if erroneous, was not prejudicial.

The evidence was sufficient to sustain the verdict, and we find no error in the proceedings which can reasonably be said to have resulted in a miscarriage of justice.

The judgment is affirmed.

Tyler, P. J., and Knight, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on February 26, 1927, and a petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on March 28, 1927.