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District Court of Appeal, Third District, California.


Civ. 5199.

Decided: March 30, 1935

Chester O. Hansen, of Fresno, and Harry D. Parker and Raymond G. Stanbury, both of Los Angeles, for appellants. C. Ray Robinson and James D. Garibaldi, both of Merced, for respondent.

Respondent herein as plaintiff recovered a judgment in the sum of $62,500 based upon a verdict by a jury in that amount against San Joaquin Cotton Oil Company, a corporation, and Thomas Ewing, its district manager, for personal injuries sustained while riding as a guest of defendant Ewing, in a car owned by San Joaquin Cotton Oil Company. These defendants appeal both from the judgment and from an order denying their motion for judgment notwithstanding the verdict.

As grounds for reversal appellants urge that the evidence is insufficient to support the verdict in that plaintiff was guilty of contributory negligence which proximately contributed to his injuries; that the verdict was excessive; that the court erred in its instructions to the jury upon the subject of damages; that the jury were guilty of prejudicial misconduct, as was also the attorney for the plaintiff; and that the evidence was insufficient to support the implied finding that defendant Ewing was acting as agent for the oil company at the time of the accident.

In the following recital of the facts as gathered from the evidence this court will, in accordance with the well-established rule, concern itself only with those facts, and inferences therefrom, that tend to establish the correctness of the findings of the jury.

It appears that plaintiff was a farmer in the San Joaquin Valley, allotting a large acreage of his lands to the production of cotton. Defendant San Joaquin Cotton Oil Company operated a number of cotton gins throughout the valley, and was heavily involved, financially, in aiding the growers in its territory, including plaintiff, to produce and market their cotton crops.

About April 22 or 23, 1933, defendant Ewing called plaintiff on the telephone and informed him that an important meeting of the San Joaquin Agricultural Labor Bureau was to be held in Fresno on April 24th, and urged him to come and bring with him as many of the representative farmers from his neighborhood as he could. Plaintiff accepted the invitation, and went to Fresno with Mr. Harry Fawcett, a neighbor. The meeting was held in the afternoon, and was over by 4:30 p. m. After the meeting adjourned some informal discussion took place in the lobby of the Californian hotel, where the meeting had been held, after which a group, including plaintiff and defendant Ewing, adjourned about 6 o'clock to some place several blocks from the hotel where liquor was obtainable. Both plaintiff and defendant each had a bottle or two of beer and four or five highballs. While there, Mr. Fawcett, having another engagement, left; Ewing inviting plaintiff to remain and he would take him home. Plaintiff accepted the invitation of Ewing stating that he wanted to talk to him and get his advice on certain matters pertaining to his cotton crop. About 8 o'clock plaintiff and Ewing left the resort and went to a restaurant near the hotel where they had dinner. No drinks were had after they left the liquor establishment. About 9 o'clock they got into Mr. Ewing's car, he driving; plaintiff to go to his home in Los Banos, Ewing to Chowchilla. Apparently nothing unusual occurred until they had reached a point somewhere near Madera, whether to the south or north thereof is not entirely clear. Plaintiff stated at one place in his testimony it was between Madera and Califa that Ewing was trying to see how fast his new Ford would go, and plaintiff then said to him: “Don't let's be in a hurry, we don't have to be.” Apparently the driver then slowed down, but subsequently on several other occasions plaintiff asked Ewing to drive more slowly, which apparently he did. In the meantime they were discussing finances pertaining to plaintiff's cotton crop and other matters affecting their mutual business interests. When they reached a point near Chowchilla, where the highway to Los Banos leaves the main highway, plaintiff suggested to Ewing that he would accompany Ewing to Chowchilla and would then drive from there to Los Banos alone, and return the car the following day. To this Ewing would not agree, and they continued on toward Los Banos. Plaintiff again warned Ewing two or three times about driving too fast, and he slowed down. At the time of the accident, which occurred about 10:30 or 11 o'clock in the evening, Ewing was driving along a main paved county highway 18 feet in width, at a rate of approximately 45 to 50 miles an hour on the straightaways, slowing down to about 30 miles an hour as he approached the bridge where the accident occurred. Just a very few minutes prior to the accident plaintiff had closed his eyes, although he was not asleep. On several occasions plaintiff warned Ewing about driving at an excessive rate of speed, and was asked: “After you warned him did he slow down,” to which he answered, “He was then slowing down some with his driving so I was not worried about it any more.” Then, owing to the blinding headlights of an oncoming car, as claimed by Ewing, he swung too far to the right, and struck the bulkhead of a small bridge, causing the injuries of which complaint is here made.

Not only by the finding of the jury, but by the plea of contributory negligence, is it determined that at the time of the accident the companion of plaintiff was intoxicated. This was not a case, however, of an intoxicated driver who proclaimed that fact abroad by boisterous, erratic, or maudlin speech or action. Defendant Ewing denied he was intoxicated at any time during the day or evening in question. Plaintiff was asked if, in his opinion, Ewing was intoxicated at the time he got into Ewing's car to go home, and he replied: “Not what I would call intoxicated–maybe talking a little bit louder–we just felt the drinks we had.”

Dr. Lum, a witness called by the plaintiff, testified, in regard to the intoxication of Ewing, upon cross-examination as follows:

“Q. You had no difficulty in determining that Mr. Ewing was intoxicated, did you? A. Yes I did; he was not dead drunk; his speech was pretty good; his first concern manifested was for the injured man, but the appearance of abnormality made me think so; I think that the alcohol had probably altered or slowed his reaction to such an extent that it would come within the limit of the definition as given by the Judge.

“Q. By that you mean, Doctor, away within the limits, or just the border line? A. It would not be away within the limits, I would say fairly definite within the limits.

“Q. In other words, it was so much so that you had no difficulty in arriving at that conclusion? A. I did have difficulty, yes, that is because of the definition of intoxication, there are so many definitions and it was largely a question of definition whether or not it would arrive within that definition.”

During the journey they discussed business and crop conditions, plaintiff testifying he had extensive acreage and a very heavy loan from the oil company which required close attention both on his part and on the part of the oil company which was financing him.

With these general facts before us, appellants ask this court to declare that under the circumstances plaintiff was guilty of contributory negligence in riding with Ewing, as a matter of law. However, we would not be justified in so holding, nor does the law assume that responsibility in face of the evidence and the finding by the jury in favor of plaintiff.

As was stated in Smellie v. Southern Pacific Co., 212 Cal. 540, 299 P. 529, 538: “Contributory negligence is a question of law only when the court is impelled to say that from the facts reasonable men can draw but one inference and that an inference pointing unerringly to the negligence of the plaintiff contributing to his injury. * * * In all other cases the question of contributory negligence is a question of fact for the jury.”

So it was here for the jury to determine whether or not Ewing was intoxicated, whether that fact was known to plaintiff, and, if known, when he became aware of that fact, and what should he, as a reasonable man, have then done under the circumstances; also, whether the intoxication of the driver proximately contributed to the accident.

Appellants have filed a carefully prepared brief setting forth numerous authorities in support of their contention that plaintiff was guilty of contributory negligence, but we do not believe the cited cases sustain their contention. In Jones v. Pacific Gas & Electric Co., 104 Cal. App. 47, 285 P. 709, 712, plaintiff was riding as a guest with one Cottrell and was injured when the automobile collided with a pole belonging to Pacific Gas & Electric Company. Judgment was entered in favor of the power company. The plaintiff appealed from that judgment, which was affirmed; the court holding in effect that the evidence as to intoxication sustained the finding of the jury. The court said, “From what the testimony shows as to the carousing of the party, the jury was warranted in drawing the inference that the defendant Cottrell was seeing lights where there were none,” and “* * * what we have set forth is amply sufficient to justify the jury in coming to the conclusion that all of the men, at least, were under the influence of the intoxicating liquor. * * *”

In Hirsch v. D'Autremont, 133 Cal. App. 106, 23 P.(2d) 1066, 1067, plaintiff was a guest of defendant in his automobile, going from Los Angeles to Santa Ana. The plaintiff was injured and sued her host. A verdict was returned by the jury in favor of plaintiff, but a judgment notwithstanding the verdict was entered by the court from which plaintiff appealed.

In its opinion the court clearly indicated that it was only after a clear case of intoxication had been manifested, and that thereafter plaintiff had had an opportunity to withdraw from the car at a well-lighted service station where she could have communicated with her friends by telephone, that she was as a matter of law held to be guilty of contributory negligence, the court saying: “The evidence is conflicting as to whether Word was or was not under the influence of liquor when the party left Los Angeles and as to whether or not such fact was known to plaintiff; and the question whether or not she was guilty of contributory negligence in commencing to ride to Santa Ana was clearly for the jury. We are also of the opinion that the question as to whether or not plaintiff should have left the car when it stopped at the railroad crossing to let the freight train pass, considering that it was among orange groves and in the middle of the night, even though she then knew that the driver was under the influence of intoxicating liquor, is one upon which reasonable men might well differ and was in consequence one for the jury to determine.”

The same rule was applied in the case of Connor v. Johnson, 132 Cal. App. 449, 22 P.(2d) 760. In Whitsett v. Morton, 138 Cal. App. 628, 33 P.(2d) 54, this court analyzed the evidence, determining it was sufficient to support the verdict of the jury, as was the situation also in the case of Lynn v. Goodwin, 170 Cal. 112, 113, 148 P. 927, L. R. A. 1915E, 588. Appellants suggest that the case of Tomlinson v. Kiramidjian, 133 Cal. App. 418, 24 P.(2d) 559, 560, relied upon by plaintiff, can be distinguished from the case at bar in that in that case there was a cause of action for gross negligence as well as intoxication, whereas in the instant case plaintiff relied entirely upon intoxication, but a reading of that case seems to clearly indicate that the controlling question in the mind of the court was that of intoxication. It was there said: “From these facts we feel that it was a question for the jury to determine, under proper instructions, (a) whether the defendant Christian was drunk or under the influence of intoxicating liquor as defined in People v. Ekstromer, 71 Cal. App. 239, 246, 235 P. 69, and whether, if drunk, or under the influence of intoxicating liquor, this was the proximate cause of the accident; (b) whether the deceased knew, or should have known, that defendant Christian was under the influence of intoxicating liquor when he last started to ride with him; and (c) whether the turning to wave at the passengers of the passing automobile while traveling at an excessive rate of speed was gross negligence, and whether such gross negligence, if so found, was the proximate cause of the accident. Krause v. Rarity, 210 Cal. 644-655, 293 P. 62, 77 A. L. R. 1327. From evidence that a person had been drinking intoxicating liquor and thereafter drives his car in a negligent manner, it does not follow as a matter of law that he was driving while under the influence of intoxicating liquor. There is no evidence in the record from which it can be said as a matter of law that deceased knew, or should have known, that Christian was under the influence of intoxicating liquor before he entered the automobile the last time, or that after discovering his intoxicated condition he had a clear chance to leave the automobile at a safe place. This clearly distinguishes the present case from Hirsch v. D'Autremont [133 Cal. App. 106], 23 P.(2d) 1066.” Also, whether the factor of contributory negligence arose by reason of the intoxication or of the recklessness of the driver would make no difference in the application of the rule. Many other cases are cited to the same effect, but sufficient has been said to indicate that the rule undoubtedly is, that where the minds of reasonable men might differ, it is our province only to find whether or not there is sufficient evidence in the record to support the finding of the jury; the burden resting upon them to determine the disputed question of fact.

The next point urged for reversal by appellant is that the damages were excessive. Under section 657 of the Code of Civil Procedure, providing for the granting of a new trial for “excessive damages, appearing to have been given under the influence of passion or prejudice,” neither trial nor appellate courts are authorized to set aside an award of damages made by a jury as excessive “merely because the opinion of the judge is at variance with that of the jury. It is only when the excess appears as a matter of law or where the recovery is so grossly disproportionate to any compensation reasonably warranted by the facts as to shock the sense of justice and raise at once a presumption that it is the result of passion, prejudice or corruption rather than honest and sober judgment that the court may exercise this power.” 8 Cal. Jur., p. 834, citing many cases.

We need but to recite the injuries enumerated by the medical men who testified in the case, and the condition of plaintiff, before and after the accident, to justify the award, and the action of the trial court in denying a new trial upon that ground.

At the time of the accident respondent was an able-bodied man forty-two years of age with a life expectancy of 26.7 years, supporting and caring for his wife and minor son. For many years he had carried on extensive farming operations and at the time of the accident was operating some 4,500 acres of land, 1,500 acres of which had been set aside for the growing of cotton, and approximately 3,000 acres of land planted to grain. The net income from the grain land that year was approximately $20,000. We gather from the record that the accident interfered with the production of a cotton crop that year.

The accident occurred on April 24, 1933, and plaintiff remained in the hospital until May 21st, when he was removed to his home where he remained in bed under the care of nurses for approximately a month longer, when he was able to be about, but owing to his nervous condition his physician advised an ocean voyage which he took and which extended from November 6th to December 22d. At the date of the trial in March, 1934, plaintiff testified that although his nervous condition was improved he still became agitated and excited over small matters, and was unable to attend to his affairs or transact any actual business; a condition verified by the testimony of the doctors.

To enumerate except in the most general way the injuries sustained would unduly extend this opinion and encumber it with many technical terms, unintelligible except to a specialist. However, Dr. Lum, his attending physician, described fractures of the skull, fractures of the jaw, one of the fractures of the lower jaw going down through the first molar, severing it, and continuing through the mandible, fracturing off part of the alveolar process, fractures which caused a portion of the jaw to drop out of alignment, a fracture and separation of the frontal and nasal bones, a fracture extending into the left orbit and a fracture of the palate radiating back through the right antrim and into the floor of the frontal vault. Also a concussion of the brain and probably lacerations of the brain tissue and brain damage. Such injuries, Dr. Lum testified, causes hemorrhage in the brain and in healing leaves scars in that area interrupting the normal functions of the patient. Also there were multiple contusions about the body, a median nerve injury on the left hand causing a vandegriff or talon hand. In the chest there was a fracture of the seventh and eighth costal cartilages. As to the brain damage, Dr. Lum was asked as to the probable effect of that injury, and testified that such a severe injury could alter one's personality, making them less stable, and occasionally developed a preliminary epilepsy, due to increased unstable brain substance. As to what to expect with reasonable certainty there were many things the doctor said could happen. Although the various fractures and contusions had healed, the brain injury and the median nerve injury are permanent. The doctor also testified there was not a complete paralysis of the legs, and plaintiff's general facial appearance was altered, the chin forced back, and there was a sag in the face. His nervous condition also was unstable, and he would never be able to do the physical work he did prior to the accident.

Dr. Sutton, a dentist, testified as to the injuries and repairs to the mouth and teeth, consisting of a compound fracture of the jaw, the splitting and breaking of the teeth and injury to the nerves of the teeth, and the correctional methods used. The doctor, when asked as to the pain and suffering caused by the appliances required to repair the damage said, “Well, I would say it was just awful,” and that one particularly severe appliance remained in place for about six weeks. Dr. Sutton also testified that plaintiff would require practically a complete set of upper and lower artificial teeth. Dr. Fountain, who co-operated with Dr. Lum and Dr. Sutton, corroborated them in what was done and the effect upon the patient. Dr. McDowell, a specialist of the eye, ear, nose, and throat, testified he treated plaintiff after the accident and found his eyesight impaired, and prescribed the wearing of glasses. An examination of the hearing of plaintiff disclosed that that sense was approximately 30 per cent. deficient.

We believe that enough has been detailed to justify the award, having in mind the age of the patient, his life expectancy, his earning power, his inconvenience, pain, and suffering, and his temporary and permanent disability.

Appellants criticise an instruction upon the measure of damages submitted by plaintiff and given by the court. The instruction as given reads:

“If you find that the plaintiff is entitled to recovery, the measure of his recovery is what is denominated as compensatory damages, that is, such sum as will compensate him for the injuries, if any, he has sustained.

“The elements entering into this damage are as follows:

“1. Such sum as will compensate him for the expense, if any, that he has reasonably and necessarily incurred for medical and hospital aid and assistance, not exceeding the amount alleged in the complaint for this purpose, to-wit: $2,265.25.

“2. Such sum as will compensate him for the expenses, if any, it is reasonably certain he must reasonably and necessarily incur, if any, for medical aid, hospital expenses and nursing in the future, because of such injuries.

“3. The value of his time, if any, during the period he has been disabled by the injury.

“4. If the plaintiff's power to earn money in the future has been impaired by the injuries, if any, such sum as will compensate him for such loss of power, if any.

“5. Such reasonable sum as the jury may award for physical pain and mental anguish suffered, if any, or reasonably certain to be suffered in the future, from the injuries, if any.

“The first three of these elements are the subject of direct proof and are to be determined by you upon the evidence you have before you, the last two elements are from necessity left to the sound discretion of the jury, but in any event the damages must be just, and cannot exceed the amount alleged in the complaint, to-wit: $127,265.25.”

Appellants criticise the last paragraph of this instruction, in that the jurors were instructed to determine the loss of earnings of plaintiff, if any, upon direct proof, whereas there was no evidence of any kind introduced as to the value of plaintiff's time while disabled, or to his earning power. The following is the evidence adduced upon the question of earnings:

“Q. Mr. Lindemann, referring to the question of your loss of earnings will you state whether or not it is true that last year off your grain crop, off of the land that was harvested after this accident, that you made a net profit of about $20,000.00? A. Approximately so.

“Q. That was off your grain land was it not? A. Yes sir.

“Q. Is it or is it not true that since the accident and at the present time you have under cultivation some 300 or 400 more acres than you had last year? A. Yes sir.”

Plaintiff also testified that as a farmer prior to his injuries he personally took charge of his tractors and farming implements, making the necessary repairs and doing the actual work, but since that time he gets agitated and cannot attend to business so far as the physical requirements are concerned, is unable to use his crippled hand, cannot walk enough, nor operate a car as he once did, and at the time of the trial was able to carry on no actual business.

The objections urged by appellant to the instruction are very similar to those urged to an almost identical instruction given in Storrs v. Los Angeles Traction Co., 134 Cal. 91, 66 P. 72, which received the approval of the Supreme Court in a well-considered opinion delivered by Mr. Justice Harrison. To quote all of the pertinent parts therefrom would extend this opinion unduly, but reference is made thereto for a complete answer to the contention of appellants.

Appellants attempt to distinguish that case or lighten its effect as precedent to the instant case, but we think without avail. The court there said: “The objection of the appellant that, as there was no specific testimony that the plaintiff was earning anything at the time of the injury, or of the amount that he was capable of earning, any verdict of the jury under this instruction would be merely conjecture, is untenable. * * * The fact that he was not in the receipt of any salary or wages, but was attending to his own business, does not deprive him of right to compensation for the loss of his earning capacity, since it is what he was capable of earning, rather than what he was actually earning, that was to be considered by the jury. It may be conceded that, in the absence of all evidence tending in any respect to show an impàirment of his earning capacity, the jury would not have been authorized to include any compensation therefor in their verdict, but it does not follow that it was necessary that there should be direct or specific testimony that he was in the actual receipt of wages, or capable of earning a specific sum in any particular employment. * * * If the circumstances which were before the jury show that by reason of the injury he has become unable to perform the labor or transact the business which he was accustomed to transact or perform prior thereto, he is entitled to recover damages therefor; and from the nature of the investigation the amount of such recovery must be left to the wise discretion of the jury. It needs no evidence to show that a plaintiff in full health and vigor, who has lost an arm or a hand by reason of the negligence of the defendant, has had his earning power greatly impaired; and in such a case a jury would not be limited to nominal damages, although there should be no evidence that he was in the receipt of wages at the time of the injury, but would be authorized to give substantial damages. Chicago, etc., R. R. Co. v. Warner, 108 Ill. 538; Fisher v. Jansen, 128 Ill. 549, 21 N. E. 598; District of Columbia v. Woodbury, 136 U. S. 450, 10 S. Ct. 990, 34 L. Ed. 472; Gainesville, etc., Ry. Co. v. Lacy, 86 Tex. 244, 24 S. W. 269; Missouri, etc., Ry. Co. v. Vance (Tex. Civ. App.) 41 S. W. 167. The rule for measuring damages is, however, the same, whatever may be the extent of the injury, but the measure of damages in any particular case will depend upon the facts in that case. No testimony is required upon matters which are presumably within the knowledge or observation of all men of common intelligence. ‘Juries are in many cases permitted to exercise their own individual judgments as to values upon subjects presumptively within their own knowledge which they have acquired through experience or observation, and the objection that no evidence was presented before them upon such subjects is insufficient to defeat their verdict.’ Cederberg v. Robison, 100 Cal. 93, 34 P. 625.”

This case has been cited with approval, and the principles there stated applied in the cases of Girard v. Irvine, 97 Cal. App. 377, 275 P. 840; Campbell v. Bradbury, 179 Cal. 364, 176 P. 685; Holmes v. California Crushed Fruit Co., 69 Cal. App. 779, 232 P. 178.

Appellants also urge misconduct of a juror as a ground for reversal. The record shows that a juror when asked upon her voir dire if she knew or was acquainted with plaintiff, or if she knew of plaintiff, by her silence indicated a negative answer.

By affidavits, one from the wife of defendant Ewing, appellants attempt to show a friendly greeting by the juror to the wife of plaintiff during an intermission in the course of the trial, and three from fellow jurors as to statements made in the jury room during their deliberations by the juror that plaintiff was changed in facial expression and disposition since the accident.

Counteraffidavits were filed by plaintiff, by the juror under attack, and by certain other jurors denying the allegations. These conflicting affidavits were before the trial court upon the motion for a new trial, and the finding there made is binding upon us. A new trial may be granted upon the ground a juror made untrue answers to questions asked upon his voir dire, if it appears the moving party was not aware of the falsity at the time of the completion of the impanelment of the jury, and did not discover such fact during the trial and before the rendition of the verdict. 20 Cal. Jur., p. 54. It appears from the affidavit of Mrs. Ewing that the circumstances related by her were alleged to have occurred at the noon recess of the first day of the trial, and by the affidavits of counsel for defendants it appears they were made acquainted with the facts set forth in the affidavit almost immediately, and, before court was convened that same day, called the matter to the attention of the trial judge, but did nothing further in the premises. In Sherwin v. Southern Pacific Co., 168 Cal. 722, 145 P. 92, 93, the court said, in a similar situation: “If the defendant or its attorneys had discovered these facts at any time during the trial, it would have been their duty, if they desired to take advantage thereof, to apply to the court for leave to reopen the examination of the jurors, elicit the facts, and thereupon offer a challenge to the juror guilty of the misconduct.” It would obviously be improper to permit a party knowing of misconduct to withhold action and gamble on the outcome before making complaint. We cite the foregoing as an additional reason for upholding the action of the trial court in denying a new trial on the ground of misconduct of the jury.

As to the alleged misconduct of the attorney for plaintiff, we cannot find sufficient ground for a reversal. The alert and able counsel for appellants have emphasized the statements of counsel for plaintiff wherein he apparently went outside the record, but we cannot attach to these matters the importance that appellants do, nor can we believe the jury were influenced thereby, particularly in view of the admonition of the court.

The last point to be considered is the claim that the evidence was insufficient to support the implied finding that Ewing was acting as an agent of San Joaquin Cotton Oil Company at the time of the accident. The following facts are in evidence: Ewing was the district manager of defendant San Joaquin Cotton Oil Company, with headquarters at Chowchilla, and whose territory covered the San Joaquin valley north of Fresno. Among his other duties were to solicit business from the farmers in that territory, settle accounts, arrange budgets and other details in connection with loans, and advise and counsel as to the production and sale of cotton. He had no fixed hours, but was on duty practically twenty-four hours a day. He also did a certain amount of contact and public relationship work as between his company and the farmers, creating and maintaining a friendly relationship between the company and the community.

The car involved in the accident belonged to the company, who paid for the gas and oil, except when the car was being used for the private business of Ewing, and there is no evidence that on this trip Ewing paid for any gas or oil. Plaintiff attended the meeting upon the invitation and solicitation of Ewing. This meeting was of the San Joaquin Valley Agricultural Labor Bureau, meeting for the purpose of fixing the general price for labor in cotton production for the approaching season, at which meeting Ewing was attending as a part of his duty as manager of the cotton company, and it was a part of his duty to see that the growers the company was financing attended these meetings. At the gathering after the meeting and before dinner it will be recalled that Mr. Fawcett, with whom plaintiff came to the meeting, stated he was leaving, and plaintiff was preparing to accompany him when Ewing said to plaintiff he had no special reason to go home and offered to take him home later, to which plaintiff replied he would accept the invitation as “he wanted to talk and get some advice from him.”

After dinner the two men, plaintiff and defendant Ewing, got in Ewing's car, Ewing driving, and they proceeded toward Los Banos, the home of plaintiff. Ewing admits they discussed plaintiff's business during the trip and almost up to the time of the accident. Plaintiff testified he already had a heavy loan with the cotton company and had an extensive acreage under cultivation, and an additional loan was necessary to cut weeds; hence the need of a discussion between plaintiff and Ewing.

It seems to be the contention of appellants that when Ewing deviated from the main highway at Califa, there taking the road leading from the main highway to Los Banos, he then abandoned the business of his employer and embarked upon a matter of his own business or pleasure. But here we have a customer of appellant, whose financial interests were closely interwoven with the oil company, attending a meeting upon the invitation and solicitation of Ewing, a manager of the company. Ewing was anxious, undoubtedly, to retain plaintiff's co-operation, and in his capacity as ambassador of good will, keeping up his contacts and developing cordial relations between plaintiff and defendant, was impelled to make a 60-mile detour not on account of any close personal friendship between himself and plaintiff, but to advance the interests of his employer. We believe the facts and circumstances here show that the entire journey was on the mission of his employer, and the jury were justified in so finding.

The matters urged for reversal have been ably presented, and to discuss and analyse all the arguments and authorities presented would unduly extend this opinion, but sufficient has been said to indicate the views of this court upon the main issues presented, and for the reasons stated herein the judgment should be affirmed, and it is so ordered.

PULLEN, Presiding Justice.

We concur: PLUMMER, J.; THOMPSON, J.