FLORES v. BROWN

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

FLORES et al. v. BROWN et al.

ZAVALA v. MURRAY et al.

Civ. 14528.

Decided: June 29, 1951

Dana, Bledsoe & Smith, San Francisco (Morton B. Jackson, San Francisco, of counsel), for defendants and appellants. James F. Boccardo, David S. Lull, San Jose (Edward J. Niland, Santa Clara, of counsel), for plaintiffs and appellants.

In this proceeding there are involved several appeals by the plaintiffs from an order granting a new trial, and several appeals by the defendants from judgments entered against them. The issues presented are numerous and complex.

On September 7, 1947, in Santa Clara County, there occurred a collision between an automobile and a truck-trailer. The automobile was a Chevrolet coupe, equipped with a pick-up box. Riding in the front seat of the automobile were Herman Flores, the driver, and his wife Anita Flores, who was holding a young baby in her arms. In the pick-up portion of the vehicle were Miss Anita Flores and Felipe Flores, both minors and Zavala, a minor and friend of and Nellie Zavala, a minor and friend of the Flores family. The truck, at the time of the collision, was being driven and was owned by defendant Ernest W. Brown. Attached to the truck was a semi-trailer owned by the defendant Jack Murray.

The truck-trailer and the automobile were both proceeding in the same direction when the truck-trailer ran into the rear of the Chevrolet pick-up. In the resulting collision Herman Flores, the father, Felipe Flores, his son, and Nellie Zavala received injuries from which they died. Anita Flores, the mother, and her daughter, Miss Anita Flores, survived but were injured.

As a result of the accident two complaints were filed, one on behalf of the Flores family containing eight causes of action, and the other on behalf of the Zavala family containing two causes of action. The first complaint, as amended, can be summarized as follows:

1. A cause of action for the wrongful death of Herman Flores brought by his wife Anita, and by their three surviving children, Anita, Joe and Herman. So far as defendant Murray, the owner of the trailer, is concerned, the theory of this cause of action is that Brown was hauling the trailer as the agent of Murray.

2. The second cause of action was also for the wrongful death of Herman, brought by the same plaintiffs named in cause of action numbered 1, but, as to Murray, the allegations are that he owned the truck and trailer which were being operated by Brown with Murray's permission and consent.

3. The third cause of action was brought by Anita Flores, the mother, for her own personal injuries. As to Murray, this cause of action is based on the agency theory.

4. The fourth cause of action was the same as three, but, as to Murray, was based on the theory of permissive use.

5. The fifth cause of action was on behalf of Miss Anita Flores, the daughter, brought by Mrs. Flores as the guardian ad litem. This cause of action, as to Murray, is based on the agency theory.

6. This cause of action was the same as number 5, but based, as to Murray, on the theory of permissive use.

7. The seventh cause of action was for the wrongful death of Felipe brought by his mother, Anita Flores. As to Murray, this cause of action was based on the agency theory.

8. This cause of action was the same as the seventh except that as to Murray it was based on permissive use.

The Zavala complaint, as amended, was for the wrongful death of Nellie Zavala and was brought by her mother, Maria Zavala. It contained two causes of action, which we will designate as the ninth and tenth causes of action.

9. The ninth cause of action, as to Murray, was based on the agency theory.

10. The tenth cause of action, as to Murray, was based on the theory of permissive use.

The answers denied that Brown had been negligent, put in issue the amount of damages, and, as to Murray, put in issue the questions of agency and permissive use. Contributory negligence of all plaintiffs was alleged generally, and specifically it was alleged that the accident was proximately caused by the negligence of Herman Flores.

The two actions were consolidated for trial. Plaintiffs abandoned all of their causes of action based on permissive use, because it was discovered that Brown owned the truck in question and the trailer, owned by Murray, is not a ‘vehicle’ within the meaning of section 402 of the Vehicle Code, the so-called permissive use statute. Miller v. Berman, 55 Cal.App.2d 569, 131 P.2d 18. Thus, the 2nd, 4th, 6th, 8th and 10th causes of action were dropped out of the case and need not be again mentioned. The case was submitted to the jury as against both defendants on the 1st, 3rd, 5th, 7th and 9th causes of action, resulting in the following verdicts:

1. In the first cause of action for the wrongful death of Herman, verdicts in favor of both defendants.

3. In the third cause of action for the injuries of Mrs. Flores verdicts against both defendants in the sum of $5,000.

5. In the fifth cause of action for injuries to Miss Anita Flores against both defendants for $15,000.

7. In the seventh cause of action for the wrongful death of Felipe, against both defendants for $5,000.

9. In the ninth cause of action for the death of Nellie Zavala, against both defendants for $5,000.

Judgments were entered on these verdicts. Motions for new trials were then made as follows:

1. By defendant Brown, on all the statutory grounds, as to the 3rd and 7th causes of action. No mention in this motion is made as to the 5th and 9th causes of action. The first cause of action, as already pointed out, was decided in favor of both defendants.

2. By defendant Murray, on all the statutory grounds as to the 3rd, 5th, 7th and 9th causes of action.

3. By all of the plaintiffs as follows:

a. As to the first cause of action—wrongful death of Herman—on the grounds of insufficiency of the evidence, that the verdict was against the law, and error in law.

b. As to the 3rd, 5th, 7th and 9th causes of action solely on the ground of the inadequacy of damages. These motions asked for a new trial of these causes of action limited to the issue of damages.

The trial court granted a new trial as to all of the issues, and as to all of the parties. In making this order the trial judge rendered an opinion in which he pointed out that he was motivated in granting the new trial as to all issues and all parties by the following factors:

1. None of the verdicts were unanimous, three being 10 to 2, and two being 9 to 3.

2. In two of the causes, instructions on contributory negligence were given but not in the other three, that issue not being involved in those three causes of action.

3. The verdicts in cause of action 1 (wrongful death of Herman) and in cause of action 3 (for injuries to Mrs. Flores) are inconsistent under the instructions, because the court instructed that, if Herman was guilty of contributory negligence, such contributory negligence must be imputed to his wife. Nevertheless, the jury found for defendants in the first cause of action, and for Mrs. Flores on the third cause of action.

4. The number of motions made for a new trial on general or limited grounds, the different grounds urged for the granting of the motions, and the complicated issues presented, if each motion were separately considered, might result in some of the motions being granted and others denied, thus further complicating the problems involved.

5. The various polls of the jury suggest that the verdicts were compromise verdicts.

6. The inter-dependence of the various causes of action suggest that either five separate new trials should be granted or one new trial of all issues and as to all parties. ‘Substantial justice’ suggests the latter.

The memorandum opinion contains the following: ‘* * * where substantial justice requires that a new trial should be granted the new trial ordinarily should be ordered on all issues and as to all parties. The question of limiting the new trial to certain specific issues is said to be a ‘very serious one.’ Keogh v. Maulding, 1942, 52 Cal.App.2d 17, 125 P.2d 858. And where the Court determines to grant a new trial as to some issues, it appears to be within the sound discretion of the trial court also to determine that substantial justice requires that the new trial be ordered upon all the issues presented. * * *

‘It is the opinion of this court that a new trial of all issues and as to all parties should br granted in the interest of substantial justice, and it is so ordered. It follows that a decision on the merits of each of the motions made is, by reason of this order, unnecessary, and the issues raised by the motions may be determined in the course of the new trial granted.’

Following this order the following appeals were taken:

1. By Anita Flores and her daughter Anita, from the order granting the new trial in action number 5 (for Miss Flores' injuries), and by Mrs. Flores in action number 7 (for the wrongful death of Felipe).

2. By Maria Zavala, from the order granting the new trial in action number 9 (for the wrongful death of Nellie Zavala).

3. By Brown, from the judgment in action number 7. Rule 3(a) of the Rules on Appeal.

4. By Murray from the judgment in actions 3, 5, 7 and 9. Rule 3(a) of the Rules on Appeal.

As a result of these appeals, all of the causes of action are before this court except action number 1, for the wrongful death of Herman Flores. The judgment in that action was in favor of defendants. A new trial has been granted. No one appeals from the order granting the new trial, so that this cause of action is not before us for review.

The following contentions are made by the respective appellants:

1. Murray, as appellant, urges that there was no evidence to show that in operating the trailer Brown was Murray's agent.

2. Brown and Murray urge that the trial court erroneously instructed that the negligence of Herman Flores, the father, was not a bar to Mrs. Flores' action for the wrongful death of Felipe.

3. The Flores' appellants, and Maria Zavala, agree that the verdict in action number 3 for injuries to Mrs. Flores is inconsistent with the verdict in action number 1, and that there should be a new trial on all issues and as to all parties on these two causes of action. As to actions 5, 7 and 9, these appellants, including Maria Zavala, urge that the new trial should be limited to the issue of damages, the only ground of their motion.

The Accident.

The basic facts of the accident are as follows:

The accident occurred on the clear dry evening of September 7, 1947, at about 8:30 p. m. on Highway 101 near Madrone in Santa Clara County, south of San Jose. The highway in this area is straight and practically level, and consists of three lanes, the lanes being indicated by white lines.

Defendant Brown was engaged in the trucking business and was the owner of the truck or tractor involved in the collision. The truck, unloaded, was pulling an empty semi-trailer owned by defendant Murray. Empty, they weighed 28,000 or 29,000 pounds, the truck weighing 16,000 or 17,000 pounds. Brown had started his trip from Los Angeles, had driven to Lakeport with his truck, picked up the trailer there, and was on his way back to King City when the accident occurred. He testified that on his way from Lakeport he stopped in San Francisco to eat for about 15 or 20 minutes sometime between 5 and 6 o'clock in the evening, and that at that time he checked his lights, all of which he found to be in good operating order; that he made no stops after leaving San Francisco until the accident occurred; that northbound traffic on the highway was heavy; that at the time of the impact he was travelling in the extreme right lane for southbound traffic at about 35 to 40 miles per hour; that his truck was equipped with a governor that limited its top speed to 40 miles per hour in the gear in which he was travelling, but that the truck could go faster in a higher gear; that the rear wheels of the truck and the wheels of the trailer were equipped with air brakes; that he could not remember whether he had applied the brakes just before the impact; that he first saw the Flores' car, which was travelling south as was Brown, when it was 15 to 30 feet in front of him; that when first observed, the Flores' car was moving from the center lane of traffic into the extreme right lane but had not completed that maneuver; that the Flores' car had no rear lights or reflectors, but that he did see legs hanging over the back of the pick-up; that the truck and trailer ran into the back of the Flores' car which caused Brown to lose control of his equipment; that the two vehicles, locked together, continued down the road for some 250 feet where they finally came to rest some 40 feet to the right of the highway against a guy wire.

The Flores' car was a 1931 Chevrolet coupe equipped with a pick-up box. The car belonged to a relative of Herman Flores, who had loaned it to the Flores family to make this trip. The family had left a ranch near Madrone at about 8 p. m., with Mr. Flores and his wife, who had a sleeping baby in her arms, in the front seat, and Anita and Felipe Flores and Nellie Zavala, sitting in the pick-up. Mrs. Flores testified that just before they left on the trip she observed that the rear lights of their automobile were lit. This testimony was corroborated by several relatives and friends of the family who observed the car when it left on the fatal trip. Mrs. Flores estimated the speed of the pick-up just prior to the accident at about 25 to 30 miles per hour. Neither Mrs. Flores nor her daughter Anita, who, with the baby, were the only surviving passengers in the Flores car, were able to give much information as to what happened just before the collision.

Traffic officers who arrived at the scene shortly after the accident occurred testified as to what they observed. There were gouge marks and skid marks that commenced at the same point on the highway. One police officer, over objection, was permitted to testify from what he observed after the accident, including the skid and gouge marks and the respective weights of the colliding vehicles, that, in his opinion, the Brown truck was travelling between 50 to 55 miles per hour. No point is made on appeal concerning the admission of this opinion evidence. Several truck drivers testified that Brown had passed them on the highway before the accident, and they estimated his then speed at from 35 to 50 miles per hour. Brown was the only witness of the collision who testified in any detail as to the events immediately prior and at the time of the impact.

Relationship between Defendants Brown and Murray.

Brown testified that he had known Murray since 1936; that both he and Murray had been engaged in the trucking business at Lakeport during the summer of 1947; with a packing company to haul pears, with a packing company to haul pears, but did not have enough equipment to handle the job so he hired Murray and his equipment to assist him on a trip-to-trip basis; that both owned their own equipment—trucks and trailers; that during the period that Murray worked for him, Murray was also hauling for other people; that he, Brown, had no interest in these jobs, and did not assist Murray with them; that on the packing company job he, Brown, collected for the hauling, and then paid Murray for the trips made by him; that during the hauling season Murray had one truck and two trailers at Lakeport; that at the conclusion of the pear season Murray brought down the truck and one trailer, thus leaving an unmotored trailer at Lakeport; that Murray told Brown that he had to go up to Lakeport to pick up his trailer; that he, Brown, told Murray that he might be going to Lakeport and would pick up the trailer; that Murray replied that he might have the trailer brought down before Brown went to Lakeport; that the two agreed that if the trailer was still at Lakeport when Brown made his visit that Brown would bring it back as a favor to Murray. The evidence shows that Brown drove his heavy truck weighing between 16,000 and 17,000 pounds from Los Angeles to Lakeport and picked up the trailer, after first ascertaining by a telephone call to Lakeport that the trailer was still there. Nevertheless, Brown testified that he went to Lakeport on his own personal business; that he did not go just to return the trailer; that Murray did not know that he had picked up the trailer until Brown arrived at King City; that Brown had made no arrangements with Murray to use the trailer but was merely returning it to King City where Murray wanted it; that the trailer was parked on the grounds of the packing company at Lakeport; that when he arrived at the packing plant there was no watchman around and he did not know if anyone saw him take the trailer; that he was not employed by Murray to bring the trailer down from Lakeport; that Murray did not even request that he bring it down, nor did Brown positively promise to bring it down; that the understanding was that, if the trailer was still at Lakeport when Brown arrived, he would bring it down as a favor to Murray; that his purpose in going to Lakeport was to make a contact as to possible future business; that this would have required but five or ten minutes, but when he arrived at Lakeport, the prospective customer was out of town. He admitted that he could have telephoned to this prospective customer and saved himself the long trip, but believed that personal contacts gave better results. He also admitted that he could have taken his automobile to Lakeport for his business call, and admitted that he would have done so had he not intended to bring back the trailer for Murray.

Murray was not present at the trial, but his deposition had been taken and was read into evidence. He denied that he had requested Brown to bring the trailer down from Lakeport, and denied that he had agreed to compensate Brown for this service, or that Brown was going to use the trailer in and about King City. He testified that all business connections with Brown had been terminated about two weeks before the accident.

The Injuries, the Damages and the Verdicts.

Herman Flores died as a result of the injuries received in the accident. The action for his wrongful death resulted in a verdict in favor of both defendants.

Mrs. Anita Flores was 48 years of age at the time of trial. She was rendered unconscious in the accident, remained so for four days, was in the hospital for 13 days, was in bed for 3 months at home, and at the time of trial (some two years after the accident) was still under a doctor's care. She had a severe compression of her chest cage, upper back and sternum. The lower end of the sternum was fractured, and there were numerous fractures of various ribs. There was fluid in her chest caused by the rib fractures, and the pain was so severe that narcotics had to be administered at frequent intervals. The fourth dorsal vertebra was fractured, resulting in a 40 per cent collapse of that vertebra. The tendons in her shoulder were probably torn. She had numerous bruises and contusions about her entire body. At the time of trial she still complained of shoulder pains, chest pains and difficulty in breathing. A doctor opined that such pains and disability existed. The injuries undoubtedly aggravated a pre-existing arthritic condition. Her doctor bills were about $500. The jury awarded her $5,000 against both defendants.

Miss Anita Flores, the daughter, aged 14 at the time of the accident, suffered very severe injuries. When brought to the hospital she had lost much blood and was in severe shock. Ordinary transfusions were not possible, because of her condition, and such were given first by exposing the veins, and, when this was found to be too slow, by a femoral puncture. She was given transfusions equal to about three-fifths of her total blood volume. She had severe lacerations of her face, a fractured jaw, multiple bruises, and compound fractures of both thigh bones just above the knees. Her jaw was wired, and pins placed to hold the thigh bones together. She was placed in a complete body cast and put in traction. She was in the hospital about three months. She has a noticeable three-inch scar on her forehead, and scars on both arms, legs and thighs. She has a permanent disability of both legs, particularly in her knee joints, resulting in a ‘knock-kneed’ deformity that is quite noticeable when she walks or stands. She is unable to squat and cannot run. Both legs show muscle atrophy and weakness, with more than a 20% loss of flexion. The disability to both knees is permanent, and that to the right knee is progressive. Degenerative arthritis is almost certain to result from the destruction of the ligaments about the knee joints. She can no longer play games or engage in athletic activity. She lost one year of school because of her injuries. The jury returned a verdict in her favor in the sum of $15,000 against both defendants.

Felipe Flores was 19 at the time of the accident, was killed in the collision, and then had a life expectancy of 43 plus years. He was not married or engaged. He lived with his parents, was a healthy sober boy, and family relations were harmonious. At the time of the accident he was working for a packing company earning between $45 to $60 per week. He gave all of his earnings to his mother, except $5 a week. The Flores family were apparently migratory laborers, and Felipe worked primarily in canneries. Funeral expenses came to $471.10. The verdict was for $5,000 against both defendants.

Nellie Zavala was 17 at the time of the accident, was killed in the collision, and had a life expectancy of some 44 years. She lived with her mother, worked in the canneries, and gave her mother between $40 to $50 per week. She was not married or engaged. She was the eldest of the eight Zavala children, and a loving thoughtful child. Her funeral expenses came to $468.08. The verdict was for $5,000 against both defendants.

Is the Evidence and the Reasonable Inferences therefrom Sufficient to Sustain the Implied Finding of the Jury that, at the time of the Accident, Brown was the Agent or Employee of Murray?

Was the Jury properly Instructed on this Issue?

Assuming negligence on the part of Brown, Murray can be held liable, if at all, only on the theory that, in transporting the trailer from Lakeport, to King City, Brown was acting as the agent of Murray. As already pointed out, the theory of liability based on permissive use was dropped from the case, a trailer of this type not being within the permissive use statute. There is no direct evidence of the existence of an agency. If an agency exists it must be found in reasonable inferences from the evidence. The key question is whether, under the evidence, an inference of agency is reasonably permissible.

The trailer was admittedly owned by Murray, and admittedly Brown had Murray's permission to bring it from Lakeport to King City. Brown and Murray contend that the evidence shows only ownership and permissive use, and claim that these two facts are not sufficient to raise an inference of agency. They emphasize that they testified that Brown was to receive no compensation for transporting the trailer, that it was done gratuitously as a favor, and that Brown was under no obligation to perform this service. Brown was not the employee of Murray, and never had been. In fact, the prior relationship was one where Murray had worked for Brown. According to Brown and Murray, even this relationship had been terminated two weeks before the accident. However, this is not all of the evidence on the subject. The trailer was a business vehicle. The transaction was a business transaction. Both Brown and Murray were engaged in the hauling business, and they had been closely associated together in that business. To have the trailer transported from Lakeport to King City was of great economic benefit to Murray. Moreover, their explanation of their relationship is unconvincing. They tried to convince the jury that Brown drove a heavy truck weighing between 16,000 and 17,000 pounds, and which obviously used a great deal of fuel, all the way from Los Angeles to Lakeport and back to King City, a two-day trip, for the purpose of interviewing, for five or ten minutes, a prospective customer in Lakeport, a customer that he did not even take the trouble to ascertain if he would be in Lakeport, and who, in fact, was not there when Brown arrived. Although Brown did not telephone to Lakeport to ascertain if the alleged customer would be at home when he arrived, he did telephone to the packing company to ascertain if the trailer was there. If Brown was so desirous of interviewing this customer it is clear that he could have telephoned to him from Los Angeles, which would have been a normal procedure, or, if he desired to see him personally, he could have used his automobile, which would not only have been much faster, but much cheaper to operate. While Brown's story that the picking up of the trailer was a mere incident to his main business of interviewing the prospective customer is not inherently improbable, it is, to say the least, somewhat unconvincing. From the evidence the inferences are reasonable, although not inevitable, that Brown went to Lakeport for the main purpose of transporting Murray's trailer back to King City, and that this was done pursuant to a prearranged agreement between Murray and Brown. The question is, under that state of the evidence, could the jury infer that Brown was the agent of Murray?

It is quite clear that Brown could be the agent for Murray although he was to receive no pecuniary consideration for his services. Tucker v. Cooper, 172 Cal. 663, 158 P. 181; Edwards v. Hollywood Canteen, 27 Cal.2d 802, 167 P.2d 729; Souza v. Corti, 22 Cal.2d 454, 139 P.2d 645, 147 A.L.R. 861; Graf v. Harvey, 79 Cal.App.2d 64, 179 P.2d 348; Maberto v. Wolfe, 106 Cal.App. 202, 289 P. 218; 1 Restatement of Agency, § 225. In other words, the absence of a pecuniary compensation to the alleged agent, while an important factor, is not a conclusive one on the issue of agency.

There have been a great many cases, not all of which are consistent, discussing the problem of what facts must be proved before an inference of agency may be drawn by the jury. Most of these cases involve the use of motor vehicles owned by one party and driven by another with the permission of the owner, and the issue is whether the jury could infer agency, and thus impose unlimited liability on the owner, or is limited by the terms of section 402 of the Vehicle Code, the permissive use statute. Of course, in order to raise the liability imposed by section 402 all that need be shown is ownership and permission. It also seems to be the law that proof of ownership and permission is not sufficient to permit the jury to infer agency, although there are some cases that hold or imply that these two factors alone are sufficient to permit the inference even in a non-family or non-employer-employee relationship. See Kanananakoa v. Badalamente, 119 Cal.App. 231, 6 P.2d 338; Dierks v. Newsom, 49 Cal.App. 789, 194 P. 518.

One of the leading cases on this subject, heavily relied upon by appellant Murray, is Stewart v. Norsigian, 64 Cal.App.2d 540, 149 P.2d 46, 150 P.2d 554. There LaFontaine, a used car dealer, sold an automobile to Blair on a conditional sales contract. LaFontaine then assigned the contract to Pacific Finance Corporation, and the registration showed the corporation as the legal owner and Blair as the registered owner. Later Blair redelivered the car to LaFontaine because he was unable to keep up the payments. LaFontaine had the legal right, under his contract with Pacific Finance Corporation, to resell the car, and was obligated to pay the corporation the balance due on the car. Norsigian, an employee of LaFontaine, told LaFontaine that he might want to buy the car in question but first wanted to take it out for a demonstration. While so driving the car he injured the plaintiff. The plaintiff recovered judgment against the corporation for $25,000. This was reduced to $5,000 on appeal. The court held that the corporation's liability was limited under section 402 of the Vehicle Code to $5,000, and that there was no basis for an inference of agency between Norsigian and the corporation. The court specifically held that mere possession and permissive use were not sufficient to raise the inference of agency, because to so hold would render the limited liability of section 402 meaningless. The court discussed many cases and held that the inference of agency may be drawn where the evidence shows only ownership and permissive use in but two types of cases:

1. Where the operator of the car belongs to the family group of the owner; and

2. Where the operator of the car is the employee of the owner.

In denying a rehearing in that case the court rendered a second opinion discussing and analyzing many cases where general language was used to the effect that the inference of agency may be based on the facts of ownership and permissive use, and finds that they either fell within the two exceptions above noted or involved some other fact. The court concluded its discussion with the following observation, 64 Cal.App.2d at page 553, 149 P.2d 46, 150 P.2d 554, 556: ‘Thus the cases relied upon by plaintiff do not establish the rule that mere permissive use of an automobile raises the inference of agency. They do not cause us to change our views that, in addition to permissive use the plaintiff must also prove either employment of the operator by the owner, or that the operator was a member of the family group of the owner, or was operating the car under the control of or for a member of the family group of the owner in order to justify the inference of agency.’ See, also, on the same general principle, Howland v. Doyle, 6 Cal.App.2d 311, 44 P.2d 453; Wilson v. Droege, 110 Cal.App. 578, 294 P. 726; Walton v. Donohue, 70 Cal.App. 309, 233 P. 76; Newman v. Steuernagel, 132 Cal.App. 417, 22 P.2d 780.

The Stewart case, and the other cases cited, at most, establish the proposition that proof of the facts of possession and permissive use, plus proof of family relationship or employment, are sufficient to raise the inference. Neither the Stewart case nor the other cases cited held that proof of ownership and possession, plus other facts tending to show agency, was not sufficient to raise the inference; in fact, the Stewart case distinguished several of the cases mentioned in the opinion on the ground that they involved other facts.

In the instant case we have proof of ownership and permissive use. We also have evidence that both Brown and Murray were engaged in the hauling business and that they had been closely associated in that business. The trailer was a business vehicle. Its transportation to King City was of great economic benefit to Murray. The inferences are permissible and reasonable that Brown went to Lakeport for the main purpose of hauling Murray's trailer from there to King City, and that this was done pursuant to a pre-arranged business agreement with Murray.

These facts, in our opinion, are sufficient upon which to base the inference of agency. But while the issue of agency was properly submitted to the jury, this should have been done by a proper instruction or instructions. The instruction given was not only erroneous, but also prejudicial. The instruction reads: ‘On the question of agency you are instructed that it is admitted that the trailer in question was owned by defendant Murray. From this fact an inference arises that one operating the property of another is doing so as the agent of the owner. It is for you to determine, under all of the facts and circumstances of this case, whether or not at the time of the accident defendant Brown was acting as the agent of defendant Murray, and if you so find that defendant Brown was the agent of defendant Murray and that he was acting within the course and scope of his agency, then any verdict you render against defendant Brown must also be rendered against defendant Murray.’

Thus, the jury was told that from the fact of ownership alone the inference of agency arises. That is not the law. Not only does this instruction ignore the element of permission, but it ignores the requirement that, in addition to those two elements, there must be the element of economic benefit and the other factors already mentioned. The instruction is obviously misleading and erroneous. The giving of such erroneous instruction clearly sustains the action of the trial court in granting a new trial to Murray in the four cases in which judgments were rendered against him—numbers 3, 5, 7 and 9.

In Action Number 7 for the Wrongful Death of Felipe, assuming that the Father, Herman, was Contributively Negligent, is such Contributory Negligence a bar to an Action by the Wife for the Wrongful Death of her Child?

The trial court instructed the jury on this issue as follows: ‘As to the causes of action of Mrs. Anita Flores for the death of her son Phillips [Felipe], Miss Anita Flores for her own injuries, and Mrs. Zavala for the death of her daughter Nellie, these plaintiffs are not to be charged with any negligence of which you may find Herman Flores guilty, if you should so find. The negligence of Herman Flores, if any, cannot be imputed to these plaintiffs in their causes of action. They were guests in the automobile Herman Flores was driving. If you find that defendant Brown was negligent and that his negligence proximately contributed in any degree to the injuries and death in these causes of action complained of, you will find in their favor even though Herman Flores was also negligent.’

There can be no doubt that this instruction correctly states the law as to actions numbered 5 and 9, that is, as to the action for the injuries to Miss Anita Flores, and as to the action for the wrongful death of Nellie Zavala. The contributory negligence of Herman Flores, if any, is no bar to recovery in these actions. No contention is made to the contrary.

It is equally clear that in action number 3, that is, by Mrs. Anita Flores for her own injuries, if Herman Flores, the husband, was contributively negligent the wife cannot recover. Zaragosa v. Craven, 33 Cal.2d 315, 202 P.2d 73, 6 A.L.R.2d 461; Duncan v. Duncan, 6 Cal.App. 404, 92 P. 310; see criticism of the rule 33 Cal.L.Rev. 627, particularly fn. 29, on p. 632.

The question that we are presented with is whether in action numbered 7, that is, the wrongful death action brought by Mrs. Anita Flores for the death of her son Felipe, the contributory negligence of Herman Flores, if any, is a bar. The instruction told the jury that in such action the contributory negligence of the father, if any, was not a bar to the action brought by the mother for the death of her son. We think that the instruction correctly states the law.

There are three cases cited by Brown and Murray that do hold that if a child is killed and the mother was contributively negligent, the father is barred from recovery. These cases seem to be based either on the theory that the mother in caring for the child is acting on behalf of the community, of which the father is the head, and that the mother is therefore the agent of the father, or upon the theory that, where both parents are alive, the recovery would be community property. The first case relied upon is the frequently cited (and often distinguished) case of Keena v. United Railroads of San Francisco, 57 Cal.App. 124, 207 P. 35, where the mother was contributively negligent, and the child was killed. The father alone brought the action for the wrongful death of the child. Both parents were alive and living together. It was held that the contributory negligence of the mother was a defense in the action by the father because the recovery would be community property. The Supreme Court, in denying a hearing of the case, rendered the following opinion, 57 Cal.App. at p. 132, 207 P. at page 38: ‘We approve of that portion of the opinion holding that the proceeds of the judgment in favor of the father is community property, but we disapprove of that portion of the opinion to the effect that the proceeds of the judgment pass to the parents, one-half to each. The contributory negligence of the mother is a defense to the action on behalf of the community to recover for the death of the child, not because of her interest in the community property, but because in caring for the child she represents and acts for the community and for the husband as the head of the community, and her negligence in caring for the child is the negligence of the husband.’

The rule of the Keena case has been followed in at least two other cases. In Cossi v. Southern Pacific Co., 110 Cal.App. 110, 293 P. 663, a mother and son were killed when an automobile driven by the mother was struck by defendant's train. The mother had been living separate and apart from her husband and had been supporting their children. It was held that the father of the child could not recover for the child's death, first, because the jury was justified in finding that he had suffered no pecuniary damage by the death of his son, and second, because ‘If the mother was negligent and thereby injured the child, the father's recovery is barred because she represented the community.’ 110 Cal.App. at page 113, 293 P. at page 664.

The same rule was announced in Dull v. Atchison, T. & S. F. Ry. Co., 27 Cal.App.2d 473, 81 P.2d 158, which was an action by a husband and father for the death of his wife and two minor children, all killed when the automobile which the mother was driving, and in which the children were riding, was struck by a train. A verdict was directed for defendant, and the judgment entered on this verdict was affirmed. After holding that the evidence showed no negligence on the part of the railroad, and that it demonstrated contributory negligence on the part of the mother and wife, the court, relying upon the Keena and Cossi cases, stated, 27 Cal.App.2d at page 479, 81 P.2d at page 162: ‘The final question presented is whether the negligence of the wife bars a recovery by the husband for the death of the minor children. It is the law that the contributory negligence of the mother is a defense to an action on behalf of the community to recover for death of the children, because in caring for the children she represents and acts for the community and for the husband as head of the community. And her negligence, if any, in caring for the children is the negligence of the husband.’

The precise theory upon which these cases are based is not entirely clear. If the husband and wife are living together, as in the Keena case, the theory might be that the recovery would be community property. All three cases involved situations where the mother was contributively negligent, and the action was by the father. The theory, most clearly expressed in the Dull case, seems to be that the husband is head of the community, that the wife in caring for the children is acting as agent of the community, and therefore her negligence is chargeable to the husband, under the doctrine of imputed negligence.

In the present case it is the father who was driving the automobile. It is he who is charged with contributory negligence. The action is brought by the mother to recover for her pecuniary loss caused by the death of her son. The husband was the head of the family and the wife had no legal right of control over her husband. The doctrine of imputed negligence is completely out of place in such a situation. The negligence of the husband can only be imputed to the wife on some theory of agency. The mere fact that a husband is transporting his wife, even in a car owned by the community, does not raise an inference that he was acting as her agent. Cox v. Kaufman, 77 Cal.App.2d 449, 175 P.2d 260.

The only theory upon which the contributory negligence of Mrs. Flores would be a bar to her action for the wrongful death of Felipe would be that the recovery would be community property. But the recovery by Mrs. Flores solely for her pecuniary damage caused by the death of her son, where the husband is dead, would not be community property. This was clearly illustrated in a recent case written by this court. Christina v. Rose, 100 Cal.App.2d 46, 222 P.2d 891. There a husband and wife had three children. They separated and the wife took custody of the children. The husband contributed nothing towards their support. While the children were in the custody of the wife one of them was killed in an automobile accident. Thereafter, the wife secured an interlocutory decree of divorce. She then instituted an action to recover her damages caused by the death of her son. She recovered judgment, and thereafter secured her final decree of divorce. The husband then instituted an action to recover one-half of the judgment she had received on the theory that such judgment was the community property of the parties. This court held that the recovery by the wife was on her own behalf to recover for her own damages, and that the amount recovered was her separate property, and not community property. In so holding we stated, 100 Cal.App.2d 54, 222 P.2d at page 896: ‘Appellant's [husband] argument that the cause of action for wrongful death and the proceeds of the judgment in such action are community property, is based primarily on the rule announced in Keena v. United Railroads of S. F., 57 Cal.App., 124, 130, 207 P. 35, 38. In that case a father brought an action for the wrongful death of a minor child. It was held that the mother's contributory negligence barred any recovery by the father because ‘The proceeds of a favorable judgment in such an action become community property.’ [57 Cal.App. at page 130, 207 P. at page 35]. That rule is based upon, and is a refinement of, the rule that damages suffered by a wife, even though recovered in an action brought by her alone, are, in this state, community property. [Citing cases.] But in the Keena case, and in the many cases in which it was held that damages for personal injuries to the wife are community property, the wife was living with the husband. We have found no case in this state where it has been held that damages to a wife living separate and apart from her husband are community property, or holding that damages in a wrongful death action recovered by a wife living separate from her husband and having custody of their child, is community property. Cogent reasons exist why the recovery in such cases should be considered the separate property of the wife.'

Certainly if the recovery by a wife living separate from her husband for the death of their child is not community property, the recovery by a wife for the damages suffered by her for the death of their child where the husband is dead cannot be community property, and this is so whether or not the father outlived the son who was killed in the same accident.

Since the husband was not the agent of his wife in the driving of the automobile, and since the recovery by the wife where the husband is killed in the same accident is not community property, the contributory negligence of the husband, in an action for the wrongful death of a child, is not a bar to the action by the wife. The challenged instruction, therefore, correctly stated the law.

Did the Trial Court Properly Grant a New Trial as to all Parties and as to all Issues?

The facts in reference to the verdicts, the motions for new trials, the action of the trial court, and the nature of the appeals have all been set forth.

In action numbered 1, for the death of Herman Flores, the verdict was for defendants. The plaintiffs moved for a new trial, which was granted. No one appeals from this order, so that a new trial as to this cause of action as to all parties and issues will necessarily follow.

In action numbered 3, by Mrs. Flores for her injuries, the verdict was for her against both defendants for $5,000. Brown and Murray moved for a new trial on all of the statutory grounds. Plaintiff moved for a new trial solely on the ground of insufficiency of the damages. The motion was granted on all issues and as to all parties. No one appeals from the order granting the new trial in this action. The only appeal is by Murray from the judgment. Since the new trial has been granted, and since no one appeals from the order granting it, the judgment has been set aside and the appeal therefrom should be dismissed. This applies to all of the appeals by Murray and Brown from the judgments. Incidentally, it is quite clear that the verdicts in actions 1 and 3 are inconsistent.

In action numbered 5 we have a complicated situation. This was the action for the injuries to Miss Anita Flores in which the verdict was for $15,000 against both defendants. The plaintiff moved for a new trial solely on the ground of insufficiency of damages. Murray moved for a new trial on all of the statutory grounds. Brown did not move. The new trial was granted on all grounds, and as to all parties. Plaintiff appeals from the order granting the new trial on all issues, and Murray appeals from the judgment. Thus, as to this cause of action the primary question is whether, on the limited motion of the plaintiff for a new trial on the ground of inadequacy of damages, the trial court had power to grant a general new trial as to Brown, who did not move for a new trial. This question as to the power of the court to grant a general new trial on a limited motion is also common to actions numbered 7 and 9.

Defendant Murray moved for a new trial in actions 3, 5, 7 and 9 on all statutory grounds. Inasmuch as the instruction on agency was prejudicially erroneous as to Murray, it is obvious that the trial court, as to Murray, had the legal right to grant a new trial in these four actions, on the ground of error in law.

It should be here pointed out that, although Murray and Brown based their respective motions for a new trial on all seven grounds set forth in section 657 of the Code of Civil Procedure, neither supported their respective motions with affidavits. This being so, it will be assumed that the new trial was not granted on the first four grounds set forth in the section. McCulloch v. Superior Court, 91 Cal.App.2d 641, 205 P.2d 689; Greer v. Freitas, 66 Cal.App.2d 335, 152 P.2d 15; Conroy v. Perez, 64 Cal.App.2d 217, 148 P.2d 680. The fifth ground set forth in the section is excessive damages. In view of the serious and permanent nature of the injuries to this girl, the damages were clearly not excessive; in fact, if anything, they were inadequate. The sixth ground set forth in the section is insufficiency of the evidence. The court did not specify this ground in its order, so it must be conclusively presumed that it was not granted on that ground. The seventh and last ground set forth in the section is error in law. The order of the trial court simply specified that substantial justice required a new trial, that the verdict may have been a compromise verdict, and that all issues were interdependent. The trial court, as already pointed out, could have granted Murray's motion for a new trial because of the erroneous instruction on agency. Thus, as to action numbered 5, the sole question is the propriety of granting the new trial as to Brown on the limited motion of plaintiff.

In action numbered 7, which was by Mrs. Flores for the death of Felipe, the verdict was for $5,000 against both defendants. Brown and Murray moved for a new trial on all of the statutory grounds. Plaintiff moved for a new trial solely on the ground of inadequacy of damages. The new trial was granted on all issues, and as to all parties. Mrs. Flores appeals from the general order granting the new trial, while Brown and Murray both appeal from the judgment. As to Murray, the new trial was properly granted because of the error in the instruction on agency. As to Brown, the question is whether the trial court properly granted the new trial on all issues. This will be discussed later.

In action numbered 9, which was for the wrongful death of Nellie Zavala, the verdict was for $5,000 against both defendants. The legal situation is identical with that in action numbered 5, that is, Mrs. Zavala moved for a new trial solely on the ground of inadequacy of damages, Murray moved on all of the statutory grounds, while Brown made no motion. The new trial as to all parties and issues was granted. Mrs. Zavala appeals from the order granting the general new trial, and Murray appeals from the judgment. The general new trial as to Murray was properly granted on his motion because of the erroneous instruction on agency. Thus, the question is whether the court had power on the limited motion of the plaintiff to grant a general new trial as to Brown, who did not move for a new trial.

Under these facts there can be no doubt that the general new trial was proper as to action numbered 1 (there being no appeal), and as to Murray in actions 3, 5, 7 and 9. The action of the court in granting a general new trial as to all parties and issues in action numbered 3 is not challenged by anyone. Thus, the only question left for consideration is whether, in actions numbered 5, 7 and 9, the trial court had the power to grant an unlimited new trial to Brown on the limited motions of the respective plaintiffs, which were based solely on the ground of inadequacy of damages.

The solution of the problem as to whether, on a limited motion, the trial court can grant a general new trial is by no means clear. At common law a trial court of general jurisdiction possessed the power to grant a new trial of its own volition. In the great majority of states the enumeration of the grounds for a new trial by statute has been construed simply as a limitation on the right of the parties to move for a new trial and not a limitation on the power of the court to act of its own volition. (See notes 25 Cal.L.Rev. 114; 22 Cal.L.Rev. 579; 40 L.R.A.,N.S., 291.)

In California, however, the law on this subject has developed somewhat differently. In the early case of Duff v. Fisher, 15 Cal. 375, 380, there appears a strong dictum that a trial court possesses the power to grant a new trial on its own motion, but this dictum was not followed by later cases. When section 662 was originally adopted authorizing the court of its own volition to grant a new trial on certain limited grounds, it was held that the power to grant a new trial of the court's own volition was limited to the grounds enumerated in the statute, and that it had no inherent power to go beyond these limitations. Townley v. Adams, 118 Cal. 382, 50 P. 550; Eades v. Trowbridge, 143 Cal. 25, 76 P. 714. Then section 662 of the Code of Civil Procedure conferring this limited power to act sua sponte was repealed in 1915. Since that date the law is now settled in this state that the trial court has no power to grant a new trial of its own volition. Ransome-Crummey Co. v. Superior Court, 188 Cal. 393, 205 P. 446; Diamond v. Superior Court, 189 Cal. 732, 210 P. 36; Prothero v. Superior Court, 196 Cal. 439, 238 P. 357; Manufacturers' Finance Corp. v. Pacific Wholesale Radio, 130 Cal.App. 239, 19 P.2d 1013; Quevedo v. Superior Court, 131 Cal.App. 698, 21 P.2d 998; Cooper v. Superior Court, 12 Cal.App.2d 336, 55 P.2d 299; Laumann v. Conner, 12 Cal.App.2d 631, 55 P.2d 1225.

These cases, and perhaps others that could be cited, definitely have determined that a trial court in this state has no power to grant a new trial in the absence of a motion for a new trial, and that the court, in any case, can only grant a new trial for the reasons specified in section 657 of the Code of Civil Procedure. In other words, the notice of intention is deemed to be jurisdictional and the trial court has no power to act sua sponte.

But the determination that a trial court cannot grant a motion for a new trial of its own volition is not necessarily determinative of the further question as to whether the trial court, when the motion for a new trial is on limited grounds, can grant a new trial on all grounds as long as its order can be supported by any one of the grounds specified in section 657 of the Code of Civil Procedure. On this question the decisions are in hopeless conflict. There is one case, Quevedo v. Superior Court, 131 Cal.App. 698, 21 P.2d 998, where the appellate court has held that not only is a notice of intention to move for a new trial jurisdictional (which is in accord with the cases above cited), but also that the trial court is limited to the foundation made by the motion and cannot go beyond it. The court held that when the motion is made on limited grounds—in that case on the ground of inadequacy of damages—the trial court is without power to grant a general new trial on the issue of liability as well as on the issue of damages.

No hearing was asked in the Quevedo case. It has been cited with approval in several cases, but mainly in support of the proposition that a trial court cannot grant a motion for a new trial of its own volition. In some respects, but not on the issue under consideration, the case has been specifically overruled. Phelan v. Superior Court, 35 Cal.2d 363, 368, 217 P.2d 951. It is directly contrary to some later appellate court opinions, and it is our view that the rule that the trial court is limited to the foundation made by the motion is unsound and should not be followed.

While not mentioning the Quevedo case, there are several cases later in time directly contrary to it. The leading case is Keogh v. Maulding, 52 Cal.App.2d 17, 125 P.2d 858, in which a hearing was denied by the Supreme Court. There the plaintiff moved for a new trial on the ground of inadequacy of damages. This limited motion was granted. On appeal the court held that it was error for the trial court to have granted the limited new trial, and that it should have granted it on all issues. After reciting the evidence that tended to indicate that the small verdict may have resulted from a compromise by the jurors, and after pointing out that limiting the new trial to the issue of damages under the evidence was an abuse of discretion, the court made the following order, 52 Cal.App.2d at page 22, 125 P.2d at page 860: ‘The order granting a new trial as to the single issue of damages is modified to provide a new trial upon all the issues framed by the pleadings and raised by the evidence. And so modified the order is affirmed, and the cause remanded for a new trial.’ Thus, the appellate court told the trial court that it had committed error in granting the limited motion for a new trial and should have granted a new trial on all issues. Yet, if the trial court had entered the very order the appellate court stated it should have entered, and which was entered by the appellate court, it would have been reversible error under the rule of the Quevedo case. See, also, Bencich v. Market St. Ry. Co., 20 Cal.App.2d 518, 67 P.2d 398, and Wallace v. Miller, 26 Cal.App.2d 55, 78 P.2d 745.

While a trial court has power, in a proper case, to grant a limited new trial, §§ 657, 662, Code Civ.Proc., this power, particularly when the new trial is restricted to the issue of damages, is a very limited one, and should be exercised with extreme caution. If substantial justice requires that the new trial be on all issues, it should not be limited, and all reasonable doubts should be resolved in favor of a general new trial. Donnatin v. Union Hardware & Metal Co., 38 Cal.App. 8, 175 P. 26, 177 P. 845; Bencich v. Market St. Ry. Co., 20 Cal.App.2d 518, 67 P.2d 398; Wallace v. Miller, 26 Cal.App.2d 55, 78 P.2d 745; Gasoline Prods. Co. v. Champlin Co., 283 U.S. 494, 51 S.Ct. 513, 75 L.Ed. 1188. We think that the true rule is and should be that, while a trial court is not a self-starter on motions for a new trial and cannot act sua sponte in the absence of a motion for a new trial, once started by a general or limited motion it has complete power, and within the confines of section 657 of the Code of Civil Procedure, may deny or grant a general or limited new trial as justice may require. It certainly is logically and legally absurd to believe that a trial court's power is limited in this respect, but that of the appellate court is unlimited. The rules announced in the Quevedo and the Keogh cases cannot both stand. They are completely inconsistent. We think that the rule of the Keogh case is sound and should be followed. In the present case, in view of the small verdicts in actions 7 and 9, and considering the extent of the injuries involved and the quite small verdict in action 5, considering the conflict of evidence on the issue of liability as to both defendants, considering the erroneous instruction as to Murray on the issue of agency, considering the confusion that obviously existed over the issue of the contributory negligence of Herman, the trial court, in the exercise of a sound discretion, decided that substantial justice required that the new trial be granted on all issues as to all causes of action, and as to all parties. That conclusion was not an abuse of discretion and was amply justified under the circumstances.

The appeals from the judgments are dismissed. The order granting a new trial as to all causes of action, as to all parties, and on all issues is affirmed.

PETERS, Presiding Justice.

BRAY and FRED B. WOOD, JJ., concur.