BRIGNOLI v. SEABOARD TRANSP CO

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District Court of Appeal, Third District, California.

BRIGNOLI et al. v. SEABOARD TRANSP. CO. et al.

Civ. 7187.

Decided: July 31, 1946

Gumpert & Mazzera and J. Calvert Snyder, all of Stockton, and George H. Hauerken, of San Francisco, for appellants. Neumiller & Ditz and Irving L. Neumiller, all of Stockton, for respondents.

This case combines the appeal of plaintiffs Brignoli and Trombetta from an order setting aside a judgment in their favor and granting the motion of defendants Seaboard Transportation Company and A. Judge for a new trial, and the cross-appeal (taken pursuant to rule 3(a) of the Rules on Appeal) of said defendants from the judgment thus set aside. Said plaintiffs are the executors of the will of Pete Rampone, whose motor transportation business they have been operating under the name of Rampone Brothers, pursuant to authority granted by the probate court. The remaining plaintiff, Nancy Sarmento, widow of said decedent, is not a party hereto. Prior to the entry of judgment the defendant corporation was dissolved, and A. Junge, who had managed its business for many years, entered the proceedings as a party defendant, upon the stipulation that any judgment against the corporation would be binding on him and any judgment in favor of the corporation would inure to his benefit.

In March 1944, plaintiffs filed this action against the defendant company by a complaint in the form of a common count for services rendered by their firm to defendant during the preceding two years at the latter's special instance and request. To said complaint defendant company filed an answer admitting liability on the indebtedness sued upon to the amount of $7,166.48, but counterclaiming for the sum of $14,780.93 on account of prior transactions by reason of which it was claimed plaintiffs had become indebted to defendant, which debt they had failed to pay. Originally, the counterclaims, which were treated by the parties and the court as a cross-complaint contained four counts. However, counts three and four were dismissed. Each of the remaining counts (one and two) charged that on the 26th and 27th day of February, 1943, plaintiffs received from defendant company certain goods belonging to the United States of America, to be safely carried from the Stockton Ordance Depot, Stockton, California, and delivered to the Desert Training Center, Nobbs, California; that plaintiffs did not safely carry and deliver said goods, but on the contrary, while in the course of transit and the exclusive possession and control of plaintiffs, said goods were damaged or destroyed in the amount above named. In addition the first count alleged that plaintiffs received the goods in the capacity of a radial highway common carrier of goods for hire between various places within the state, and particularly the places named, while the second account alleged that plaintiffs received the goods in the capacity of a contract carrier of goods between the named places, and that the destruction of or damage to said goods was proximately caused by the negligence of plaintiffs in the transportation thereof.

Plaintiffs by an amended answer admitted receiving the goods for carriage and the destruction or damage thereof in the amount charged, but denied that they were acting as a common carrier and alleged that they received said goods in the capacity of a private or contract carrier and that the goods were destroyed or damaged by fire without fault on the part of plaintiffs or their employees or servants.

On the issues thus joined the cause proceeded to trial before a jury, and the following facts, which are for the most part undisputed, were adduced in evidence: The principal business of plaintiffs and their predecessor was transporting by motor trucks fresh fruits, fresh vegetables, and canned goods from the delta region of the San Joaquin and Sacramento rivers to Oakland or San Francisco. In addition, they hauled other commodities for various concerns, and, commencing sometime in 1941, they also occasionally carried freight as subcontractors for defendant. Plaintiffs' predecessor held a certificate of public convenience and necessity under the provisions of the Public Utilities Act, Deering's General Laws, Act 6386, sec. 50 3/434. Plaintiffs themselves made application to and received from the railroad commission, under the provisions of the Highway Carriers' Act, Deering's General Laws, Act 5129a, a radial highway common carrier permit and a highway contract carrier permit, as those terms are defined in section 1, subdivisions (h) and (i), of said Act. Plaintiffs reserved the right to, and did, on occasion, refuse to carry freight for anyone who might solicit their business, except during the fruit season, and then they carried only fresh fruits, vegetables and canned goods between the termini above indicated.

On February 26, 1943, plaintiffs received from defendant a shipment of army goods to be carried from the ordnance depot at Stockton to a training center at Hobbs, a distance of several hundred miles. This was done at the request of defendant, which, according to its usual custom, sublet portions of this kind of business when it did not have sufficient equipment to handle it. The bill of lading covering the goods in question had been issued by the defendant company to army authorities. There was no written contract between defendant and plaintiffs, nor did the latter issue any bill of lading. The goods were loaded by army men, and plaintiffs' driver signed defendant's ‘dray tag’, showing the kind and amount of freight to be delivered, and signed a talley-sheet of the ordnance depot which showed the general nature of the load and its destination. The rate of carriage which was agreed upon between plaintiffs and defendant's agents was somewhat less than the rate paid to defendant by the army.

Plaintiffs' equipment consisted of a diesel tractor with a semi-trailer and trailer. The load comprised automobile and truck parts, materials, tools and repair equipment, which were contained or packed in crates, boxes, cans and bundles. After tarpaulins had been tied over the loads by the driver, he proceeded south on U.S. Highway 99 toward his destination. A short distance from the town of Pixley and approximately 270 miles from Stockton, the front tires of the trailer blew out, whereupon the driver pulled off to the side of the highway, stopped, set out flares, and checked the tires, which he found to be warm but not dangerously hot. Not having spare tires for both wheels, he flagged a motorist and was taken to Pixley, where he telephoned plaintiffs' manager for additional tires. Within an hour he was driven back to his truck by another truckdriver. Upon his return he found the semi-trailer in flames and the trailer partly burned. The trailer and much of its load were saved, but the semi-trailer and its load were a complete loss. The cause of the fire was never explained. The salvaged merchandise to the value of approximately $30,000 was returned to the army depot, and the army authorities made a claim against defendant company of $14,486.98, which the latter paid.

The court in its instructions to the jury stated the essential differences between a common carrier and a highway contract carrier or private carrier and between a highway common carrier and a radial highway common carrier, for the most part in the language of the applicable code and statutory provisions. Likewise the nature of the liability of each was explained. According to a further stipulation, a verdict was directed and returned in favor of plaintiffs on their original cause of action for a recovery in the amount of $8197.02. On the defendant's counterclaim or cross-complaint the verdict was likewise in favor of plaintiffs and against defendant. Judgment was entered accordingly. Thereupon, defendants moved that the judgment be set aside and a new trial granted, assigning as grounds therefor all of the causes provided by Section 657 of the Code of Civil Procedure. The trial court at the time of granting said motion filed a memorandum opinion wherein the court stated that it had reluctantly reached the conclusion that the motion should be granted because the ‘Failure of the Court, through inadvertence, to give the defendant's instruction defining a private carrier constituted the error of law which I believe, under the peculiar circumstances of this case, confused the jury and seriously affected the outcome of the trial.’ In further explanation thereof, the court said: ‘I consider it quite significant that the jury, after retiring, returned to the courtroom and requested that the court point out ‘the distinction between a common carrier, a contract carrier and a radial carrier.’ This indicates that the jurors were confused; and I am convinced now that the Court did not clarify the matter by giving them the definitions requested.'

Plaintiffs' first contention is directed to the question raised by the trial court in its memorandum opinion: Whether the failure to give the particular instruction requested by defendant constituted such error as would warrant the granting of defendants' motion for a new trial.

The instruction which the court refused, but which it is contended should have been given, reads as follows:

‘A contract or private carrier is distinguished as one who does not dedicate and hold out his transportation service generally to the public or a substantial portion thereof, but who is employed by a select and limited group of shippers as a private carrier for an agreed compensation to the exclusion of all others by a mutually binding contract entered into and performed in good faith for an agreed term, and which contract mutually binds the carrier to transport and the shipper to supply a specific category of freight and which contract is definite as to the following:

‘1. The time involved in the performance of the contract;

‘2. The route and/or termini and/or area involved in the performance of the contract;

‘3. The kind of commodity or commodities involved in the contract;

‘4. The tonnage to be hauled:

‘5. The compensation to be paid and received.’

At the outset, it is to be noted that said proposed instruction, removed from its context in the opinion from which it was taken (Rampone v. Leonardini, Dec. No. 28526, 39 C.R.C. 562, 567, 568) and left unexplained, is only partially a correct exposition of the law applicable to the present case. First, it constitutes only a part of the commission's statement in that case. Secondly, it fails to include the remaining portion of the context dealing with a carrier's conduct in soliciting and procuring a contract, which the commission declares to be of controlling importance in determining whether or not the carrier is a highway contract carrier. Lastly, it fails to include the substance of a succeeding paragraph in said opinion dealing with a shipper's conduct in relation to the carrier's activities, which the commission states ‘is also important, in determining whether such a carrier is in fact a ‘highway contract carrier.” Our conclusion in this regard is supported by the opinion of the commission in Matter of Fred Belli, Dec. No. 30382, 41 C.R.C. 1, 3, 4, wherein all three of these paragraphs are embodied, and not merely the first one, as in the case of the instruction proposed by defendant herein. By singling out one portion of the statement and omitting others, the proposed instruction places undue emphasis on a feature which does not appear to have entered into the theory of either of the parties, namely, the definiteness of the contract of hire. As the court stated in Still v. San Francisco, etc., R. Co., 154 Cal. 559, 572, 98 P. 672, 678, 20 L.R.A.,N.S., 322, 129 Am.St.Rep. 177: ‘Instructions which are drawn solely for the purpose of, and which simply have the effect of, emphasizing some particular portion of the evidence, are not to be commended.’

Furthermore, insofar as said instruction may be said to carry the implication that a highway contract carrier must operate ordinarily between fixed termini or over a regular route, it is incorrect. In the very opinion of the railroad commission from which the language of the questioned instruction was taken and on the same page of the report of said opinion (39 C.R.C. at page 568), the following statement appears:

‘The services of the ‘highway contract carrier’ may or may not be conducted, usually or ordinarily, between fixed termini or over a regular route, and may or may not be on a regular schedule.'

It is this latter statement which the cases of People v. Lang Transportation Co., 217 Cal. 166, 170, 171, 17 P.2d 721, and People v. Duntley, 217 Cal. 150, 166, 17 P.2d 715, support as reflecting the true rule. In the former case the court stated [217 Cal. 166, 17 P.2d 723]:

‘The finding of the court of the common carrier status of the defendants is therefore not supported by the record. The question whether they were operating between fixed termini or over a regular route becomes immaterial.’

The Duntley case is to the same effect, that [217 Cal. 150, 17 P.2d 721]:

‘The determination that the record supports the findings and conclusions of the trial court that the defendant is not a common carrier renders it unnecessary to decide whether he conducted his operations between fixed termini or over a regular route.’

Additionally, it must be borne in mind that by other instructions the jury was told: ‘A private or contract carrier, on the other hand, is not bound to carry for every person and can refuse to do so without incurring any liability’; and that ‘A carrier may be a common carrier as to certain types of merchandise, and be a contract carrier as to other types of merchandise, and this will depend upon the conduct of the carrier or the agreement of the carrier with the shipper, or both. The true test as to whether or not a carrier is a common carrier or a private is not what the company is empowered to do, but what it is actually engaged in doing.’ Also it is to be noted that the Highway Carriers' Act goes no further in defining a highway contract carrier than to say: ‘The term ‘highway contract carrier’ when used in this act means every highway carrier other than a highway common carrier as defined in subsection (g) and every radial highway common carrier as defined in subsection (h).'

By still other instructions, the jury was advised that if they found the plaintiffs were operating as a common carrier on the occasion in question, and in the absence of certain exceptional circumstances, none of which was in issue or proof, they must find for the defendant; but if they found that plaintiffs were operating as a highway contract carrier, or a private carrier, they must find for plaintiffs, unless they were satisfied from the evidence that the plaintiffs were guilty of negligence. Therefore, in bringing in the verdict it did, the jury must have determined that the plaintiffs were operating as a highway contract carrier or private carrier and not as a common carrier, whether radial or otherwise, and that the loss of the property in question was not due to negligence on their part.

Our examination of all of the instructions leads to the conclusion that the jury was fully and fairly advised as to the various legal principles applicable to the case. This being so, the defendant could not have been injured by the refusal of the court to give a more detailed or elaborate definition of a highway contract carrier than the one given.

While we are entirely in accord with the general rule stated in American Marine Paint Co. v. Nyno Line, Ins., 45 Cal.App. 1, 3, 187 P. 71, and relied upon by the trial court in granting a new trial on the sole ground of what the trial court construed to be confusion in the minds of the jury relative to the various types of carriers, nevertheless our examination of the record leads to the conclusion that no such confusion existed in the present case.

Because of the manner in which the question has arisen, we quote at length from the transcript wherein the colloquy between the court and the jury appears.

‘The Court: The Bailiff has just advised me that would like some instructions read to you, is that true?

‘Foreman Larimer: Your Honor, the Jury would like to know what is the distinction between a common carrier, a contract carrier and a radial carrier.

‘The Court: The instructions are quite lengthy; It might take me a few moments to find what you want. Here is one instruction (reading from Instructions Given): ‘There are two classes of common carriers operating upon the highways of this state in instrate commerce. The first class is called ‘highway common carrier’ and the second class is called a ‘radial highway common carrier.’ A ‘highway common carrier’ is one who dedicates and holds out his transportation services generally to the public, or a substantial portion thereof, for compensation, for the transportation of some certain variety or varieties of freight, at rates filed with the Railroad Commission of the State of California and who usually or ordinarily operates between fixed termini or over a regular route. Before commencing his operations as such, a ‘highway common carrier’ is required to make a showing before the Railroad Commission sufficient to justify and culminating in the issuance by the Commission of a certificate that declares that public convenience and necessity requires such operation. A ‘radial highway common carrier’ is one who dedicates and holds out his transportation services generally to the public, or a substantial portion thereof, for compensation, for the transportation of some certain variety or varieties of freight, and who does not usually or ordinarily operate between fixed termini or over a regular route, and who offers to serve anyone within the scope of his dedication, which scope must be a clearly defined area.' Does that answer your question in reference to that point?

‘Foreman Latimer: Yes, sir.

‘A Juror: One thing we want to know, the discussion now being about the radial area, what area was meant there?

‘The Court: You will have to remember that from the evidence. The instructions would not comment on the evidence in respect to the question you just asked.

‘(Addressing the Jury) Now, do you understand what is meant by private carrier? It is another branch the case. Have you that instruction clearly in your minds as to what a private carrier is, as distinguished from a common carrier, in relation to the law?

‘Jurors: (Collectively) Yes.

‘The Court: Are there any other Instructions you would like the Court to read; if so, I would like to read them to you.

‘A Juror: The contract carrier now.

‘The Court: Now I will read you an instruction which will go back of that somewhat (Reading):

“A carrier may be a common carrier as to certain types of merchandise, and be a contract carrier as to other types of merchandise, and this will depend upon the conduct of the carrier or the agreement of the carrier with the shipper, or both.

“The true test as to whether or not a carrier is a common carrier or a private carrier is not what the company is empowered to do, but what it is actually engaged in doing.

“This is important from a standpoint as to liability because if you find that the cross-defendant, Rampone Brothers was a common carrier, then one rule of law would apply, but on the other hand, if you find that the cross-defendant, Rampone Brothers, was a contract carrier, then another rule of law would apply.

“In this connection, you are instructed that if you decide that the cross-defendant——'

‘(Addressing the Juror) You are not confused in reference to plaintiffs and defendants and cross-complainants, are you, you have the parties in mind?

‘The Juror: Yes.

‘The Court: I will read that again (Reading): ‘In this connection, you are instructed that if you decide that the cross-defendant, Rampone Brothers, was a common carrier, that Section 2194 of the Civil Code of California, reads as follows: ‘Liability of inland carriers for loss. Unless the consignor accompanies the freight and retains exclusive control thereof, an inland common carrier of property is liable, from the time that he accepts until he relieves himself [of] liability * * * for the loss or injury thereof from any cause whatever.’ Now, that is the general statement. Here are some exceptions (Reading).

“1. An inherent defect, vice or weakness, or a spontaneous action, of the property itself;

“2. The act of a public enemy of the United States or of this State;

“3. The act of the law; or

“4. Any irresistible human cause.'

‘If any of these things occurred, then there would be no liability, and in the absence of the occurrence of any of these things that I have just read, there would be a liability from the fact you found them to be a common carrier (Reading): ‘In the event that you decide that the cross-defendant, Rampone Brothers, was a contract carrier, you are advised that Section 2114 of the Civil Code of California provides that a contract carrier or a private carrier is as follows: ‘A carrier of property for reward must use at least ordinary care and diligence in the performance of all his duties.’' Is that plain?

‘The Foreman: Yes, sir.

‘The Court (Reading): ‘Therefore, if you decide that the cross-defendant, Rampone Brothers, was a contract carrier as to the Seaboard Transportation Company and the particular load of merchandise, then, before you can return a verdict against the cross-defendant, Rampone Brothers, you must find from a preponderance of the evidence that the cross-defendant, Rampone Brothers, was guilty of some negligence which proximately caused the loss and/or damage to the merchandise.’ Now, is that clear?

‘The Foreman: Yes.

‘The Court: Is there anything else you would like me to read in connection with these instructions?

‘Mr. Neumiller: If Your Honor please, if I might make one suggestion. One of the jurors said there was some discussion about the area that might be embraced in the activities of a common carrier as compared to a radial common carrier. I assume we could stipulate that the permit issued by the State of California covers all the highways in the State of California.

‘Mr. Snyder: I don't think that is important. It is what the law authorized them to do; it is what they held out to the public, and that is a statement of facts.

‘The Court: If the Jury wish the evidence read, it will be read to them. Is there anything else?

‘A Juror: The question came up in the jury room as to what the radius was under the radial law.

‘The Court: You will have to rely on your memories of the evidence, and if your memories are not good as to the evidence, you will call upon the Reporter to read it to you. The Court does not cover that; that is a question of fact, not of law. I would not cover that. Anything else? Do you wish the Reporter to look that up for you?

‘A Juror: Well, I don't think it makes a difference, although some of us members, where the evidence showed they had a radius of 150 miles, and this load got further, about 260 miles away, and there was a discussion over that, and some said that the radial contract called for the full state and some said it was only for a 150 mile radius.

‘The Court: You will have to call upon your memories of the evidence. Members of the Jury, you may retire, and if you cannot remember it, you can come back into Court and take all the time necessary to look that testimony up and have the Reporter read it to you.

‘Juror Mrs. Bacon: It seems to me your instruction gave the liability of a common carrier and of a contract carrier, but you did not also just now read as to a radial common carrier. Is the liability just the same for a radial common carrier as it is for a common carrier?

‘Mr. Neumiller: I think we could stipulate on that, Your Honor.

‘The Court: Yes. It is a different name.

‘Mr. Snyder: If it is a common carrier, whether it is a radial common carrier or a common carrier between fixed points, the liability is exactly the same.

‘Mr. Neumiller: Yes, sir; we so stipulate.’

It appears therefrom that while initially the jurors were not clear on this question, upon a reading of the instructions their uncertainty disappeared and they were satisfied they understood the distinctions between highway contract or private carriers and common carriers. And although there remained apparent confusion concerning the extent of a radial carrier's scope of activity, this appears to have been due principally to the insistence of defendant on the contention that said fact was not material to the inquiry and that the evidence which alone could determine that scope was incompetent; and in any event it would seem that this question was also set at rest when counsel stipulated that the liability of a radial common carrier was the same as that of an ordinary common carrier.

With the asserted object of showing that the alleged error in refusing to give the questioned instruction could have been prejudicial, defendants have discussed at length the evidence on the issue of plaintiffs' status as a common or private carrier in order to demonstrate that the evidence would support a finding that plaintiffs were operating as a common carrier on the occasion in question. We find no merit in this contention. The capacity in which plaintiffs were acting was a question of fact primarily for the jury (George v. Railroad Commission, 219 Cal. 451, 456, 27 P.2d 375; People v. Duntley, supra, 217 Cal. at page 165, 17 P.2d 715; Haynes v. MacFarlane, 207 Cal. 529, 532, 279 P. 436), and, since the trial court did not specify the insufficiency of the evidence as a ground for its order, this court is precluded from considering that feature of the record (Ellis v. Jewett, 18 Cal.App.2d 629, 631, 64 P.2d 432), either directly or indirectly. Moreover, even if defendants succeeded in making such a showing, this would not render applicable the decisions they cite, vix., Tower v. Humboldt Transit Co., 176 Cal. 602, 606, 169 P. 227, and Langford v. San Diego Electric R. Co., 174 Cal. 729, 734, 164 P. 398. Both cases were decided prior to the amendment of section 657 of the Code of Civil Procedure limiting our duties in reviewing the evidence.

In any event, it is to be borne in mind that defendant's claim was advanced in two different counts each preserving a separate issue, (1) that plaintiffs were a radial common carrier, and (2) that plaintiffs were a contract carrier. In addition, instructions were given and refused with respect to the law and evidence applicable to each issue. When, therefore, the jury gave its verdict to plaintiffs and there was substantial evidence to support such verdict on either count, as the trial court found, and as we are required to presume, then, and in the absence of a showing of prejudicial error directly referable to both counts, the general verdict must be allowed to stand. Shields v. Oxnard Harbor Dist., 46 Cal.App.2d 477, 491, 116 P.2d 121; Martin v. Vierra, 34 Cal.App.2d 86, 94, 95, 93 P.2d 261, 94 P.2d 567; King v. Schumacher, 32 Cal.App.2d 172, 179, 89 P.2d 466; Hume v. Fresno Irr. Dist., 21 Cal.App.2d 348, 356, 357, 69 P.2d 483; Walton v. Southern Pacific Co., 8 Cal.App.2d 290, 305, 48 P.2d 108, certiorari denied 296 U.S. 647, 56 S.Ct. 308, 80 L.Ed. 461. In other words, the cause herein having been submitted to the jury with sufficient instructions covering both of the counts of the cross-complaint, and the jury having returned a general verdict for plaintiffs, this court may neither disturb that verdict nor reverse the judgment if either count is free from prejudicial error and sufficient to sustain the verdict. Mitchell v. Towne, 31 Cal.App.2d 259, 261, 87 P.2d 908; 24 Cal.Jur. sec. 134, p. 885.

It is our conclusion, therefore, that the particular asserted error of law upon which the motion for a new trial was granted did not warrant the order herein made granting said motion. It remains to be seen whether any other error was committed which would warrant such an order or which constitutes reversible error under defendants' cross-appeal.

The first ground of defendants' attack on the judgment and the proceedings leading thereto is the action of the trial court in admitting in evidence plaintiffs' application for a permit to operate as a radial highway common carrier, although it is conceded that the permit (which obviously was issued pursuant to the application) was properly received in evidence. This objection is based on two contentions: (1) That the admission of the application constituted a violation of the parol evidence rule; and (2) that said writing was nothing more than a self-serving declaration and therefore was inadmissible as pure hearsay. We find no merit in either of these contentions.

Said permit in part reads:

‘The above named Carrier, having made written application to the Railroad Commission of the State of California for a permit to operate as a Radial Highway Common Carrier, pursuant to Chapter 223, Statutes of 1935, as amended, and having complied with the provisions of said Statute, is hereby granted this permit authorizing the transportation of property for compensation by motor vehicle over the public highways of the State of California as a Radial Highway Common Carrier, as defined in said Statute, * * *

‘The rights and privileges herein granted shall not extend beyond the scope of this Permit or Chapter 223, Statutes of 1935, as amended, nor be construed to authorize the carrier to operate as a highway common carrier between fixed termini or over a regular route without having first obtained a certificate of public convenience and necessity or unless said carrier possesses a prior right so to do.’

It would seem to follow naturally that unless such a permit was intended to be limited in respect to the area which it covered, there would be no difference at all between the privileges of a radial highway common carrier and those of an ordinary highway common carrier whose activities are regulated under th provisions of the Public Utilities Act, Deering's Gen. Laws Act 6386, sec. 50 3/434, and not Highway Carriers' Act, deering's Gen. Laws, Act 5129a, and who must procure a certificate of public convenience and necessity if he would operate at all. From the very use of the term ‘radial’ it is evident that such a common carrier must operate within a designated or fixed radius, even though within the limits of such a radius he is free to operate over any highway embraced within the designated area. This this is the proper interpretation of the term ‘radial highway common carrier’ and of the language of the permit to which defendants refer is demonstrated by the decision in the Rampone case, supra, 39 C.R.C. at page 567, where the railroad commission states:

‘A ‘radial highway common carrier’ is distinguished as one who dedicates and holds out his transportation services generally to the public, or a substantial portion thereof, for compensation, for the transportation of some certain variety or varieties of freight, and who does not usually or ordinarily operate between fixed termini or over a regular route, and who offers to serve anyone within the scope of his dedication, which scope must be a clearly defined area.

‘A ‘radial highway common carrier’ may operate, within this defined area, over any public highway, subject, of course, to the possibility that frequent operations between fixed termini or over any definite route may transform his operations into those of a ‘highway common carrier,’ for which a certiicate of public convenience and necessity is required.' (Italics added.)

Furthermore, if the only place where this area is designated is in the application rather than the permit itself, then the intendment is apparent that the two writings should be read together to determine the scope of the permit. It also could be expected that the permit would refer to the application; and, as appears, that is precisely what it does. Therefore, since the permit refers to the application, and the application does not vary the terms of the permit but instead merely explains them, and as the rule is that ‘Where a writing itself contains a reference to extrinsic matters, these matters may be shown for the purpose of explaining the writing.’ (32 C.J.S., Evidence, § 960, p. 902; 22 Cor. Jur., § 1577, p. 1181), there was no violation of the parol evidence rule in admitting said application in evidence.

Moreover, carrying the thought suggested by the idea of dedication a step further, it would seem to follow necessarily that he who proposes to dedicate a part of his activities to the public must be permitted to show the extent of his dedication and particularly the limits thereof; and if by mere administrative fiat contained in the permit the field of his dedication were enlarged beyond his purpose, this indeed would work a grave injustice upon him.

The other contention on this point, namely, that the language in question contained in the application is self-serving, fails to take into account the fact that such language dos not purport to constitute the declaration of any fact, but merely signifies the intention of the applicant with regard to the scope of his activities and dedication: ‘That applicant proposes to operate motor vehicles for the transportation of property for compensation as a radial highway common carrier, under the provisions of Chapter 223, Statutes of 1935, as amended, within the general area set forth below, viz.: * * * All territory within a 150 mile radius from Oakland or trucks listed below.’

It thus appears that whatever self-serving quality could be read into this language would bring it within the exception to the rule of exclusion: ‘When intent is a material element of a disputed fact, declarations * * * that indicate the intent * * * are admissible in evidence as an exception to the hearsay rule.’ Whitlow v. Durst, 20 Cal.2d 523, 524, 127 P.2d 530, 531.

The cases cited by defendants on this question do not militate against the soundness of the distinction we have pointed out. The case of McKnelly v. Brotherhood of American Yeomen, 160 Wis. 514, 152 N.W. 169, holds merely that the declaration of a purported fact, viz: the physical condition of the applicant, contained in an application for an instrance policy is self-serving and incompetent to prove the fact. In the present case, if plaintiffs had stated in their application for a permit from the railroad commission that they had operated or were operating only within a given area, and then were attempting to prove the truth of that fact by such statement, the two cases might be deemed to be analogous. But this was not the offer which plaintiffs made nor the ground on which the application was admitted. The other case cited by defendants on this point, In re Estate of McCarthy, 127 Cal.App. 80, 15 P.2d 223, appears to have no factual resemblance to the case at bar and is but another example of the general rule relating to self-serving declarations of deceased persons.

Defendants' second ground of attack on the judgment herein is based on the refusal of the trial court to give defendant's proposed instruction Number 9, which, substantially enbodying the language of section 2195 of the Civil Code, reads:

‘A common carrier of the property is liable, for the loss or injury to such property, even if such loss or injury is caused by an inherent defect, vice or weakness, or a spontaneous action of the property itself, the act of a public enemy of the United States or of this State, the act of the law, or an irresistible super-human cause, if his want of ordinary care exposes the property to the cause of the loss.’

Section 2195 declares: ‘A common carrier is liable, even in the cases excepted to by the last section, if his want of ordinary care exposes the property to the cause of the loss.’

The cases or causes referred to as excepted by section 2194 from those in which a carrier is liable for the loss of the freight from any cause whatever are:

‘1. An inherent defect, vice, or weakness, or a spontaneous action, of the property itself;

‘2. The act of a public enemy of the United States, or of this state;

‘3. The act of the law; or,

‘4. Any irresistible superhuman cause.’

It is evident from the manner in which defendants present their argument on this point that they recognize the fact that, unless there is in the record some evidence which would support a finding of the existence of one of those excepted cases to which the requested instruction would be referable, they have no standing to complain of the action of the trial court in refusing to give it. However, the evidence on which they rely to show such a case is wholly insufficient. It consists of a mere surmise hazarded by one of their dispatchers who, when he was informed of the fire, expressed the thought that ‘maybe the paint on that load blew up.’ From this defendants urge: ‘There was thus a slight inference that the fire was the result of spontaneous action.h They add: ‘There was also a stronger inference that a passerby may have started the fire.’ It goes without saying that such evidence would not warrant a finding of the existence of one of the exceptional cases above referred to.

As the court stated in Estate of Calkins, 112 Cal. 296, 306, 44 P. 577, 580:

“In order to justify the submission of any question of fact to a jury, the proof must be sufficient to raise more than a mere conjecture or surmise that the fact is as alleged. It must be such that a rational, well-constructed mind can reasonably draw from it th conclusion that the fact exists; and, when the evidence is not suficient to justify such inference, the court should refuse to submit the question to the jury.' (Citing cases.)'

With regard to defendants' observation that an inference could have been drawn that a passerby may have started the fire, it is sufficient to point out that, on the hypothesis on which this argument is predicated and the claim of error in the refusal to give the instruction, namely, that plaintiffs were acting as a common carrier, the fact that a third party had started the fire would not have relieved them from liability, and therefore a finding thereon would have been immaterial. See 4 Cal. Jr., p. 870, sec. 45.

Defendants' third ground for appeal from the judgment is that the evidence was insufficient to sustain the verdict and judgment, it being contended that the evidence shows as a matter of law that the plaintiffs and their agents or servants were negligent. It is claimed that plaintiffs were negligent in sending out their trucking equipment on the trip without spare tires to take care of blow-outs such as occurred here; that Davis, the driver of the truck, was negligent in taking the equipment out an night knowing that the right front of the rear trailer was overloaded and there was but one spare tire; and that Davis was negligent in leaving his truck unguarded.

While such circumstances might be deemed to warrant the inference of negligence, they do not appear to be of such a kind as to compel the inference and foreclose all others. Under the law of bailments, as in other cases, the question of negligence remains almost invariably one of fact. Travelers Fire Ins. Co. v. Brock & Co., 47 Cal.App.2d 387, 392, 118 P.2d 25; Homan v. Burkhart, 108 Cal.App. 363, 367, 291 P. 624; Webber v. Bank of Tracy, 66 Cal.App. 29, 35, 225 P. 41; 4 Cal.Jur., p. 43, sec. 24.

Moreover the present case involves not only a question whether the plaintiffs and their employees exercised due care, but also, whether, assuming they did not, such failure was the proximate cause of the loss. It has been said that ‘the question of proximate cause is generally one for the trier of the fact, and it is only in those rare cases where reasonable minds cannot differ on the question that a court is justified in taking that question from the trier of the fact.’ Kostouros v. O'Connell, 39 Cal.App.2d 618, 622, 103 P.2d 1028, 1030.

In support of their argument defendants cite the case of Sullivan v. Williams, 107 Misc. 511, 176 N.Y.S. 710, 711, wherein it was held that the defendant was a common carrier, and the court observed ‘Even if the common carrier rule did not apply here, and the defendant were a mere bailee for hire, his failure to guard the truck and its contents would have been sufficient to fasten liability upon him.’

The facts in that case were quite different from those in the present case, and at most the decision is authority for a rule that failure to guard a truck may under certain circumstances constitute negligence as a matter of law. We are in accord with the ruling of the trial court herein to the effect that the circumstances in the present case were not such as to warrant a withdrawal of the issue of negligence from the jury.

While we are cognizant of the rule that, in granting a new trial on the ground of error in giving or refusing to give an instruction or for any other error of law, much is committed to the discretion of the trial court and an abuse of such discretion must appear before the order will be set aside (see, Sheets v. Southern Pacific Company, 212 Cal. 509, 516, 299 P. 71), we are equally mindful of the duty imposed upon courts by article VI, section 4 1/212 of our Constitution, to deny a new trial for error of law unless such error is prejudicial. Brown v. George Pepperdine Foundation, 23 Cal.2d 256, 262, 143 P.2d 929. See, Hayes v. Fine, 91 Cal. 391, 400, 27 P. 772; Springer v. Sodestrom, 54 Cal.App.2d 704, 711, 129 P.2d 499; Cheney v. McGarvin, 7 Cal.App. 71, 74, 93 P. 386.

It is our studied conclusion that the record discloses no ground upon which a new trial should have been granted nor any reason for believing that a new trial can justly result in a judgment more favorable to defendants, and therefore the order setting aside the judgment and granting the new trial is reversed and the judgment is affirmed.

PEEK, Justice.

ADAMS, P. J., and THOMPSON, J., concur.

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