LOPER ET AL v. MORRISON ET AL

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

LOPER ET AL. v. MORRISON ET AL.

Civ. 13812.

Decided: February 15, 1943

Russell H. Pray, of Long Beach, Henry F. Walker, of Los Angeles, and S. J. Nordorf and William C. Price, both of Long Beach, for appellant. Joseph A. Ball, Albert D. White, and Kenneth Sperry, all of Long Beach, for respondents.

There are two defendants in this case; one a milk distributing corporation, the other an employee of the corporation. It was the duty of the employee to deliver milk to customers of the milk company within a certain area in the city of Long Beach. In the milk business such areas are called “routes”; and such employees are generally called “drivers.” In addition to delivering milk, it was the duty of the driver to collect the accounts of the customers on his route, and to solicit new business. As one of the witnesses stated: “He had to keep the route up.”

Customers were divided into two classes; authorized and unauthorized. Authorized customers were those whose accounts were with the company. If the customer failed to pay any part of such accounts, the loss fell upon the company. Unauthorized accounts were also between the customer and the company, but if any part of such accounts was not paid, the driver made up the loss. To insure that he would do this, he put up with the company a bond or deposit of $100. On the route in question, a greater part of the customers were authorized accounts, but a portion of them were unauthorized accounts, for which latter accounts this particular driver was responsible.

For the purpose of delivering milk, the company provided a truck, to be operated by the driver. He checked in to work about 3 a.m. and checked out about 12 noon. After 12 noon, if the driver had to collect accounts or solicit new business, he used his own car. He was never told to collect any money after hours, but was told that it was his responsibility to get all delinquent accounts in. And if he failed to collect unauthorized accounts he was that much out of pocket.

On the day of the automobile accident which occasioned this law suit, the driver defendant went to work at the usual hour and checked out about noon. After noon he attended a union meeting at the company's plant. Then he was advised by the telephone operator at the company's office of a new customer who should be seen. So he started out, in his own car, to see this new customer and to make a collection on an unauthorized account. The latter was a sort of hard–to–find, dead–beat customer. On this trip he was accompanied by another of the company's drivers. It was his purpose, along with the others just mentioned, to take the other driver home.

First he called to see the new customer; then to collect the delinquent account. But the latter customer was not at home. Then he started to go to the other driver's home. On the way there they stopped at a tavern and had something to eat and a glass of beer. At least an hour or two was spent in that method of relaxation. The place of refreshment mentioned and the home of the guest driver were several city blocks outside of the limits of the milk route.

Then the driver took the other home. After leaving his home, he started back to the house of the customer from whom he was endeavoring to collect. This house was within the limits of the milk route.

It was on this part of the trip, and before he reached the outer boundaries of the milk route, that he endeavored to stop his automobile at an intersection, his brakes failed, his car ran into another, ricocheted off that car and struck the plaintiff's car, with resultant injuries and damages to the plaintiffs, who were husband and wife. The incidents involved were submitted to a jury, which rendered its verdict against both defendants for loss and damages to the plaintiffs. In due time this verdict was followed by judgment and appeal.

The main ground of appeal is that the evidence will not support the verdict of the jury as to the corporate defendant, in that when the accident occurred the defendant driver was not engaged in the performance of duties within the scope of his employment. Other grounds are that there was error in the refusal of the trial court to give certain instructions to the jury; misconduct on the part of the trial judge so serious that the appellant was deprived of a fair trial; and error in refusing to admit certain evidence.

As the law of negligence applied to motor vehicle accidents has developed, there have been many cases involving the rights of persons damaged because of negligence of other persons driving vehicles, either with the consent of the owner, or in the relationship of principal and agent. Of the consent cases, the latest is Blank v. Coffin, 20 Cal.2d 457, 126 P.2d 868. In that case our Supreme Court held that when the evidence disclosed an automobile belonging to the employer was being driven by an employee at the time of the accident, the jury may infer that the employee was operating the automobile with the permission of the owner, and when there was such evidence it was error for the trial court to direct a verdict for the employer. In Westberg v. Willde, 14 Cal.2d 360, 94 P.2d 590, our Supreme Court held in an agency case that if the driver of the automobile was an employee of defendant that fact gave rise to the inference that he was acting within the scope of his employment.

Whether the car belongs to the employer or the employee does not necessarily determine the fact that the driver was the agent of the employer defendant and was acting within the scope of his employment. The driver may be driving his own car, as was the case in Gardner v. Marshall, 56 Cal.App.2d 62, 132 P.2d 833, and in Hiner v. Olson, 23 Cal.App.2d 227, 72 P.2d 890, 73 P.2d 945. The fact to be determined is whether the driver was the agent and as such agent was acting within the scope of his employment. To ascertain this fact, certain facts must appear. Such primary facts do not follow any fixed pattern, but depend upon the circumstances of each case under consideration. If from these primary facts it may reasonably be inferred that the fact of agency and scope of employment exists, then the party has introduced sufficient evidence to entitle him to have a jury decide the issue. Blank v. Coffin, supra.

Counsel in the case at bar stress the circumstance that the driver departed from the boundaries of his route and that perforce he was not acting within the scope of his employment. It was entirely proper to argue such theory to the jury. But on appeal such theory does not as a matter of law require a reviewing court to set aside the verdict and judgment.

It is settled law that when an agent with a fixed place of employment departs therefrom on an errand or enterprise entirely his own, he is then not acting within the scope of his employment. Gordoy v. Flaherty, 9 Cal.2d 716, 72 P.2d 538. In some cases this has been termed the departure rule. In Gayton v. Pacific Fruit Express Co., 127 Cal.App. 50, 56, 15 P.2d 217, 219, the proper rule of decision is set forth in order to determine whether a given case comes within this rule. “ ‘To exonerate the master, however, it is essential that the deviation be for purposes entirely personal to the servant (39 Cor.Jur., p. 1297, Master and Servant, §§ 1493, 1494); and a deviation will be regarded as immaterial if the latter combines his own business with that of the master or attends to both at substantially the same time (Brimberry v. Dudfield Lumber Co., 183 Cal. 454, 191 P. 894.) A mere deviation from the strict course of his duty does not release the master from liability. In order to have that effect it must be so substantial as to amount to an entire departure. 39 Cor.Jur., p. 1297, Master and Servant, § 1493. As the rule has been stated: “One does not cease to be acting within the course of the master's employment because his most direct and immediate pursuit of the master's business is subject to necessary, usual or incidental personal acts, nor even by slight and immaterial delays or deflections from the most direct route for a personal or private purpose, the pursuit of the master's business continuing to be the controlling purpose. Such acts, not amounting to a turning aside completely from the master's business so as to be inconsistent with its pursuit, are often only what might be reasonably expected, to which, therefore, the master's assent may be fairly assumed; or they are in many instances the mingling with the pursuit of the master's business some purpose of the servant's own.” Shearman & Redfield, Negligence (6th Ed.), § 147a. Whether there has been a deviation so material or substantial as to constitute a complete departure is usually a question of fact. In some cases the deviation may be so marked, and in others so slight relatively, that the court can say that no conclusion other than that the act was or was not a departure could reasonably be supported; while in still others the deviation may be so uncertain in extent and degree in view of the facts and circumstances as to make the question of what inferences should be drawn from the evidence properly one for the jury.’ These rules have been approved in Waack v. Maxwell Hardware Co., 210 Cal. 636, 292 P. 966.”

The present case does not come within the departure rule and the fact as to whether the defendant driver was acting within the scope of his employment was properly submitted to the jury.

Appellant's complaint of instructions refused by the trial court is closely connected with the question of respondeat superior just discussed. The refused instructions followed appellant's theory that the mere fact that the driver was without the boundaries of his route when the accident occurred, as a matter of law compelled a judgment for the corporate defendant. The proposed instructions so far as they follow this theory were properly refused. Other instructions proffered by the defendant and refused were given in effect elsewhere in the instructions. The jury was fully and fairly instructed as to the rights of both parties and the law applicable to the case.

The assignment of error as to misconduct of the trial judge is without merit. During the course of the trial, cross–examination by counsel for appellant was protracted. At one time the court commented on the fact that counsel was asking many questions; and at another time the court remarked that counsel had been allowed to go along to the point of almost exhaustion. At another time the court indicated to counsel what he considered to be the proper method to present certain proffered testimony. We have read the entire reporter's transcript, with particular reference to the remarks of the court assigned by counsel as reasons for reversing the judgment, and find none of them prejudicial to the rights of the defendant. In none of the court's remarks did he indicate any opinion one way or the other as to the merits of the case. In all of them the court was endeavoring to save its time and that of the jury in an attempt to prevail upon counsel to curtail lengthy cross–examination and argument and to expeditiously present defendant's case to the jury. Also the jury was given the stock instruction that if the judge had said or done anything which suggested that he was inclined to favor the claims or position of either party, the jury should not be influenced thereby, and if any expression of the judge seemed to indicate an opinion relating to any of these matters, the jury should disregard it.

Finally, appellant insists that the trial court erred in ruling that a hospital record denominated “nurses record” was not admissible in evidence. The plaintiff wife was in the hospital several weeks after the accident; she testified to pain and suffering. Her doctor testified to his opinion of her pain and suffering, of her physical condition, and of the treatment she received; the jury fixed her damages in the sum of $2,000 and her husband's damages in the sum of $600. In an endeavor to refute this testimony as to pain and suffering and treatment, defendant offered in evidence the nurses record. Plaintiffs' objections to it were that it was hearsay.

The entries in the nurses record were expressions of opinion as to the physical condition of the patient in each day's record; whether she had a good day, or night, and similar expressions. The entries were written by one nurse, but the opinions which she set down were given to her orally by other nurses. It is therefore apparent that the objections were well taken unless there is some exception to the general rule of evidence involved. Appellant asserts that this is to be found in section 1953e to 1953h inclusive of the Code of Civil Procedure. These sections in part embody what has been termed the Uniform Business Records as Evidence Act.

The offered evidence is a written record of opinions of nurses as to the physical condition of a patient in a hospital, written in the record by a person other than the ones who formed and expressed the opinions. To admit such evidence would deprive the party against whom it is offered of the right of cross–examination. Section 1953e to 1953h, Code of Civil Procedure, provide that the record of an act, condition or event in a business shall be competent evidence, upon proof of identity and mode of preparation, in the regular course of business “if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.” This record does not come within the intent or meaning of the code sections named because neither the sources of information, nor the method nor time of preparation were such as to justify its admission. “Books, reports, and memoranda which are merely used as part of a system for conducting a business have generally been held to be inadmissible as evidence, except for purposes of refreshing the memory of a witness. A mere memorandum for convenience, which discloses no purpose to charge or bind anyone, may be resorted to for the purpose of aiding the memory of a witness, but not for proof of a disputed fact.” 20 Am.Jur., § 1045, p. 885.

The judgment is affirmed.

DRAPEAU, Judge pro tem.

YORK, P. J., and DORAN, J., concurred.