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

DILLARD et al. v. McKNIGHT et al.

Civ. 16116.

Decided: July 28, 1948

Dana R. Williams and Kenneth Sperry, both of Long Beach, for appellants. Arthur C. Fisher, of Los Angeles, for respondent Thorley.

It appears from the record herein that on July 24, 1941, Hodge L. Dillard died as the result of injuries sustained by him on the evening of July 20, 1941, in a collision at the corner of Avalon Boulevard and Artesia Street, in the County of Los Angeles, between a Pontiac coupe in which he was a passenger, and a Studebaker automobile then being operated by defendant McKnight in an allegedly negligent manner. The instant action to recover damages for wrongful death was instituted by the parents of the decedent against defendant McKnight; his employer, defendant Wilcox; W. J. Neville, the owner of the Studebaker car; the Thorley Oil Company; and several fictitiously named defendants.

On August 11, 1942, the cause went to trial on the first amended complaint, at the conclusion of which a motion for non-suit was granted as to defendant Thorley Oil Company, and on September 2, 1942, judgment was entered in favor of plaintiffs against defendants McKnight and Wilcox for the sum of $7,500, and also in favor of the defendant Neville, it being found by the court therein that ‘at all times herein mentioned, defendant, General Jackson McKnight, was the agent, servant and employee of the defendants herein, and that he was acting within the scope of his employment as such agent, servant and employee.’ This judgment was returned unsatisfied on November 5, 1942.

Thereafter service was made upon defendants Thorley and Bower, who had been sued as Doe V and Doe IV, respectively, and on August 16, 1944, the first amended complaint herein was amended to show the true names of these two defendants in place of such fictitious names.

On September 12, 1946, the cause came to trial before the same judge for the second time during the course of which defendants Bower and Thorley were examined as witnesses. At the conclusion of said second trial, it was found by the court that ‘as a direct and proximate result of the negligence of the defendant General Jackson McKnight, and by reason of the accident and the injuries received by the said Hodge L. Dillard, his death resulted on July 24th, 1941. * * *

‘* * * that on the 20th day of July, 1941, the defendant General Jackson McKnight was employed by the defendants J. F. Wilcox, Robert A. Thorley and James A. Bower, as a driller on a well being drilled to attempt to produce oil near the corner of Main Street and Sepulveda Boulevard, in the County of Los Angeles, State of California.

‘* * * that at the time of the accident herein described, and which resulted in the death of Hodge L. Dillard, the defendant General Jackson McKnight was not acting wtihin the scope of his employment as the agent, servant or employee of said J. F. Wilcox, Robt. A. Thorley, or James A. Bower, or of any other defendant named in the amended complaint filed in this action.’

Accordingly, judgment was entered on December 27, 1946, in favor of defendants Thorley and Bower.

This appeal is prosecuted from such judgment by the plaintiffs, it being urged by them that ‘The only finding which supports the judgment is without substantial support in the evidence’, to wit: the finding that defendant McKnight was not acting within the scope of his employment at the time of the accident, in that ‘(A) The former judgment herein, wherein it was found that the defendant McKnight was acting within the scope of his employment as an employee of the defendant J. F. Wilcox is res adjudicata and conclusive on that issue as against the defendants Robert A. Thorley and James A. Bower, who were admittedly co-partners and joint employers of the defendant McKnight. * * * (B) The findings of the trial court with respect to whether the defendant McKnight was acting within the scope of his employment at the time of the accident are contrary to the undisputed evidence in the case.’

It is undisputed that early in July, 1941, defendant Wilcox was drilling an oil well close to the corner of Main Street and Sepulveda Boulevard, near the town of Lomita; that defendant Thorley invested some money in this venture and on July 14, 1941, as a limited partner, executed Articles of Limited Partnership (which were never recorded) in connection with such investment; that six days later the defendant McKnight, who was then, and theretofore had been, employed as a driller by defendant Wilcox, became involved in the accident heretofore mentioned.

Defendant Wilcox was called as a witness in the second trial herein, and testified that in the latter part of June, 1941, he started oil drilling operations on 200 acres of land which he had under lease at Main and Sepulveda; that defendant Bower helped finance the venture on a 50/505050 basis, and early in July they ran out of money; that thereupon they began negotiations with defendant Thorley, president of the Thorley Oil Company, who operated a producing oil well located on property owned by him at 618 West 124th Street, in the City of Los Angeles; that as a result of these negotiations defendant Thorley agreed to help finance the Wilcox well for which he was to receive ‘25% interest in the well and that particular block the well was to be drilled on and some acreage * * * I believe 50% of what we had left’; that at the same time the Articles of Limited Partnership heretofore mentioned were executed. This witness also testified that within a few days thereafter, defendant Thorley suggested that Mr. Bob Hickerson, an employee of the Thorley Oil Company, be placed in charge of the drilling operations at the Wilcox well, which was done, and that Dr. Thorley also placed his own petroleum engineer on the job at the said Wilcox well.

Defendant McKnight testified that in June of 1941 he was hired by defendant Owen to work as a driller on a well, known as Wilcox No. 1, located near Main and Sepulveda; that at first he took orders from Owen and later from Bob Hickerson; that he worked an eight-hour shift and on July 20, 1941, he went to work at 4:00 p. m.; that they were short a derrick man; that Hickerson ‘come out there to the rig and I told him I needed another derrick man. He said, well, go ahead, that he didn't know where to get one, if I knew where to get one to hire him. * * * he said any time I could find one, any time one come around to hire him, that it was all right with him.’ This witness also testified that when Hickerson started to leave the well on that day he could not get his car started and asked the witness to give him a push; that he was not able to push the car so he ‘went back to the rig and got a rope and pulled him up Main Street there to Carson to the filling station, and there wasn't no mechanic on duty on Sunday evening, and he told me to pull him on down to Normandie on Carson. * * * and there was no mechanic there, and he said ‘pull me down’, over to a lease somewhere on Figueroa.' They then cut through to Figueroa and continued to 124th Street, the location of the Thorley Oil Company well, where he left Hickerson and ‘started back to the well. * * * it was getting along about sundown when I started to pull his car. * * * Being summertime it was late, about 8:00 when it is supposed to be getting dark.’ That he turned into Figueroa Street and ‘missed the Main Street crossing there or I crossed it and didn't see the sign, and I thought I would go on over to Truck Boulevard and see this roughneck and get him to come out the next evening if I could not get him to come out that night. * * * I was going to hit Truck Boulevard and go through to Wilmington to see this roughneck and go back to the well’; that the man lived about three blocks west of Truck Boulevard; that he made no stops at any place except boulevard stops from the time he unbooked Hickerson's truck until the time of the accident, which occurred before he reached Truck Boulevard. This witness also testified that before he left Hickerson at the Thorley lease, the latter ‘told me, when I got back to the lease (Wilcox well) to tell the driller when he come on to put on a new bit and not to carry more than two points, and the bit would stand that. * * * He told me to tell Casparia on the morning tour—when I got back to the rig, he said tell him if the bit is dull * * * to run in a Smith rig drill bit in the hole and not to carry over two points weight.’ With respect to this incident, the following took place:

‘Q. What time was this Casperia coming on duty that night? A. 12:00 o'clock.

‘Q. What time was it, to the best of your knowledge, when you were talking to Mr. Hickerson at the Thorley Oil Company lease? A. Well, it was sometime after dark—it must have been between 9:00 and 10:00. I didn't have any watch.

‘Q. Whose car were you driving at that time. A. Jack Neville's. * * *

‘Q. When you left the place at 124th and Figueroa, where were you intending to go? A. Well, I was going to go back to the rig until I missed Main Street, and then I thought I would go and pick up the derrick man if I could get him. * * *

‘The Court: What time was it you came on duty that night. A. 40:00 o'clock.

‘The Court: What time was it you started to pull this other man's car? A. Well, it was about, it was getting along about sundown, and some time in the evening, it must have been about 7:30 or 8:00——

‘The Court: 7:30 or 8:00? A. I pulled up to Carson and Main.

‘The Court: How long did it take you to pull up to Carson and Main? A. I imagine about an hour and a half.

‘The Court: An hour and a half to pull how far? A. Oh, we stopped at two stations.

‘The Court: Yes. A. I guess it must have been about eight or nine miles, isn't it? 124th and Figueroa to Main—right under the viaduct there at Wilmington. It must be eight or nine miles or ten, I don't know how far.

‘Q. By Mr. Sperry: Well, did you intend to try to get the man to come back with you that night? A. Or leave word for him if he wasn't home. I was going to leave a card there for him. * * *

‘Q. And after you went by there where did you intend to go? A. Back to the rig. I had to work on until midnight.

‘Q. About how far was it from the rig to this place in Wilmington where you intended to pick up this man? A. Well, I should about half a mile, I guess. * * * I don't know exactly. * * *

‘The Court: I think you can stipulate on that, that it was about three miles easily, couldn't you? * * * From where the Main Oil Company lease was to where the Victory Hotel was * * * it must have been a good three miles, three miles and a half.’

The accident occurred at approximately ten o'clock in the evening of July 20, 1941.

In discussing the doctrine of res judicata, our Supreme Court in Bernhard v. Bank of America, 19 Cal.2d 807, 813, 122 P.2d 892, 895, states: ‘In determining the validity of a plea of res judicata three questions are pertinent: Was the issue decided in the prior adjudication identical with the one presented in the action in question? Was there a final judgment on the merits? Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication?’

There is no doubt that the facts presented at the instant trial constitute an affirmative answer to these questions. However, as stated by appellants in their memorandum of points and authorities supporting their motion for a new trial herein, ‘the only real issue presented upon the second trial related to the nature of the relationship between Wilcox and the defendants Bower and Thorley.’ The articles of limited partnership executed by James F. Wilcox, general partner, and Robert A. Thorley, limited partner, were introduced in evidence at this, the second trial, which definitely placed defendant Thorley in privity with defendant Wilcox, against whom the judgment in the first trial was rendered. Having proved the relationship, it then became incumbent upon appellants to claim the benefit of the first judgment and thus bind the defendant Thorley.

As stated at 50 C.J.S., Judgments, § 596, page 14: ‘While the doctrine of res judicata is usually regarded as a defense, it is equally available to plaintiff where the circumstances warrant it, either by pleading it as an element of his cause of action or in reply to defendant's answer * * * or, where no opportunity for this is afforded, by introducing evidence of the former adjudication * * *.’ And ‘When the facts are not admitted, a plea of res adjudicata must be proved by proper evidence.’ 50 C.J.S., Judgments, § 836, page 404. (Emphasis added.) See also, Johnson v. Ota, 43 Cal.App.2d 94, 97, 110 P.2d 507, 509, wherein it is stated: ‘Although the judgment pleaded was an adjudication of the matter at bar and may have been rendered by the same court upon the same cause of action, and although such judgment and its supporting papers may be on file in the same court, still the party pleading such prior adjudication carried the burden of establishing his plea which can be done only by actual proof of its records. Glaze v. Bogle, supra [105 Ga. 295, 31 S.E. 169].’

During the course of the instant trial, appellants failed to either plead or prove the former judgment, but proceeded to try the entire cause anew, thereby presenting for determination the very issues previously decided. By so doing, appellants have waived their right to claim the benefit of the judgment rendered in the first trial herein.

Apropos of this, the following appears in 50 C.J.S., Judgments, § 597, page 15:

‘A party who is entitled to claim the benefit of a former judgment may waive, or be estopped to assert, the right.

‘Although it has been said that, when a cause has been once fairly tried, it ought not to be tried again, even if the parties are willing, it is nevertheless a general rule that a party entitled to claim the benefit of a former judgment may waive or estop himself t assert such right. So, where a party * * * joins issue on the very question settled by the judgment, or voluntarily opens an investigation of the matters which he might claim to be concluded by it, or makes an admission of record inconsistent with the former judgment, he will be held to have waived the benefit of the estoppel, and the case may be determined as though no such former judgment had been rendered. [Cooley v. Snake River Dist. Impr. Co., 78 Or. 384, 152 P. 1190; 34 C.J. p. 750, note 19.]’ See, also, Freeman on Judgments, 5th Ed., p. 1715, sec. 808; Domestic and Foreign Petroleum Co., Ltd. v. Long, 4 Cal.2d 547, 562, 51 P.2d 73; 15 Cal.Jur. 214, sec. 233.

Appellants urge that the ‘findings of the trial court with respect to whether the defendant McKnight was acting within the scope of his employment at the time of the accident are contrary to the undisputed evidence in the case.’

The testimony of defendant McKnight hereinabove summsrized discloses that he was employed as a driller and was in charge of the drilling operations in the absence of the superintendent, Bob Hickerson; that the latter had requested him to hire another man at any time he could find one; that the witness knew of a man whom he thought he could get but he did not know his telephone number; further, he had no automobile of his own. Thus the circumstances as depicted by the evidence presented an opportunity for the witness McKnight to drive by the hotel where the roughneck lived and make arrangements for the latter to come to work at the well. The undisputed evidence is that the Truck Boulevard went within three blocks of the hotel where the roughneck lived and that this was the only route with which McKnight was familiar. The accident occurred while he was en route to the hotel in Wilmington to see the so-called roughneck. Since the witness was carrying out an instruction of his employer at the time of the accident, in the face of another instruction to return to the well, it cannot be said that there was such a deviation as to support a finding that he was not acting within the scope of his employment.

As stated in Gomez v. Cecena, 15 Cal.2d 363, 366, 101 P.2d 477, 478: ‘While no universal and immutable formula can be prescribed for determining the weight to be accorded testimonial evidence, it has frequently been said that testimony which is not inherently improbable and is not impeached or contradicted by other evidence should be accepted as true by the trier of fact. Michaels v. Pacific Soft Water Laundry, 104 Cal.App. 366, 286 P. 172; Shepard v. Shepard, 65 Cal.App. 310, 223 P. 1012; Hynes v. White, 47 Cal.App. 549, 190 P. 836; Lee Sing Far v. United States, 9 Cir., 94 F. 834; see Wigmore on Evidence, 2d Ed. § 2034.’ Similarly, in Fidelity & Casualty Co. v. Abraham, 70 Cal.App.2d 776, 782, 161 P.2d 689, 692, it was held: ‘But the settled rule is that the uncontradicted and unimpeached testimony of a witness cannot be arbitrarily disregarded.’ And in the late case of Dobson v. Dobson, 86 Cal.App.2d 13, 193 P.2d 794, the rule was repeated: ‘Testimony, which is not inherently improbable and is not impeached or contradicted by other evidence, must be accepted as true by the trier of fact.’

Applying the foregoing principle of law to the facts here presented, it is obvious that the finding to the effect that the employee McKnight was not acting within the scope of his employment at the time of the accident is without support in the evidence.

For the reasons stated, the judgment appealed from is reversed.

YORK, Presiding Justice.

DORAN and WHITE, JJ., concur.