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District Court of Appeal, First District, Division 2, California.


Civ. 10947

Decided: September 19, 1939

George K. Ford and Simpson Finnell, Jr., both of San Francisco, for appellant. Robert G. Partridge, of San Francisco (Wallace O'Connell, of San Francisco, of counsel), for respondent.

In an action for damages for personal injuries the plaintiff sued the publishing company and Daniel O'Brien, one of its employees. Before the cause went to trial the plaintiff voluntarily dismissed as to O'Brien. The principal issue at the trial was whether O'Brien was acting within the scope of his employment at the time of plaintiff's injuries. This is the only question which calls for discussion on the appeal.

O'Brien was employed by the publishing company as a district manager to perform specific work in connection with the distribution of the Chronicle newspaper “in a specified district, with certain definite boundaries, during specified hours”. He furnished his own automobile which he was driving at the time he collided with and injured plaintiff. The collision occurred on O'Brien's night off, at a time when he had no duties to perform for his employer, and at a place far removed from his place of employment. In short, O'Brien appears to have been celebrating his freedom from employment, as he was observed leaving a saloon immediately preceding the accident, and at the time of the collision was driving recklessly on the wrong side of the highway going in the opposite direction from his liquor place of employment. Neither party produced him at the trial, and his negligence is now admitted.

Against the positive evidence that the employee was on leave and not engaged in the service of his employer at the time of the collision, the respondent relies on three pieces of evidence from which she argues that the inference may be drawn that he was then acting within the scope of his employment. We will consider these in the order of their presentation.

A sticker was affixed to the windshield of O'Brien's car reading “Chronicle Press Car”. The appellant explained that the purpose of carrying these stickers was to admit the cars to the special parking place at the printing offices where the cars were loaded with papers for distribution. This testimony was not controverted. There was no testimony tending to prove that this sticker, which was firmly pasted on the windshield, was removed when the car was not being used in the employment. The inference would be that it was not attached.

Three bundles of Chronicle newspapers were found in O'Brien's car at the time of the collision. The respondent endeavored to prove that these papers were of the current issue of the night of the collision. Her witnesses gave testimony as to the news headlines printed on the papers in the car. The collision occurred at 11:30 p.m. at the intersection of Potrero avenue and Twenty-fourth street, which is several miles from the place of publication. The papers identified by the witnesses were not published until several hours later. The only reasonable inference which can be drawn from the testimony is that the witnesses were mistaken in their identification and had in mind the headlines of the Examiner which papers were being sold on the street corner at the time, and which did carry the news and bear the headlines testified to covering a matter of news in which the Chronicle was “scooped” by the rival paper on that particular night by a matter of an hour or more. Hence, so far as any evidence is concerned, these papers may have been old issues of a week or more past and their presence had no bearing on the issue of employment.

Evidence was offered by the respondent that dog races were being conducted a mile or more from the scene and that the Chronicle was in the habit of sending papers past this intersection to be sold at the arena. From this it is argued that the jury might infer that O'Brien was carrying papers to be sold at the dog races. Uncontradicted evidence was offered that the dog races always closed before 11:10 p.m., that they had closed on the night of the collision long before the collision occurred and that the respondent had been a patron of the races that night. No evidence was offered as to when she left the arena, but we may presume if she had any evidence favorable to her side she would have produced it.

These three pieces of evidence are insufficient to support the inference upon which respondent relies in view of the positive evidence that O'Brien was off duty and engaged in his own pursuit of pleasure at the time of the collision.

The rule applicable here is thus stated in Engstrom v. Auburn Automobile Sales Corp., 11 Cal.2d 64, 70, 77 P.2d 1059, 1063: “An inference is dispelled as a matter of law when it is rebutted by clear, positive, and uncontradicted evidence which is not open to doubt, even though such evidence is produced by the opposite side.” See, also, Crouch v. Gilmore Oil Co., Ltd., 5 Cal.2d 330, 333–335, 54 P.2d 709; Montanya v. Brown, 31 Cal.App.2d 642, 88 P.2d 745.

The judgment is reversed.

NOURSE, Presiding Justice.