MOELLER v. DE ROSE

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

MOELLER v. DE ROSE et al.

Civ. 14446.

Decided: September 19, 1950

Campbell, Hayes & Custer, Robert E. Hayes, San Jose, Edward J. Niland, Santa Clara, of counsel, for appellant. Emery J. Delmas, San Jose, for respondent.

Plaintiff, a pedestrian, was injured by an automobile owned and operated by De Rose, a newspaper distributor for the San Jose Mercury Herald, published by the Hayes Company. Plaintiff brought this action against De Rose and the Hayes Company, the latter being joined on the theory that De Rose was an employee of the Hayes Company and was acting in the course and scope of his employment at the time of the accident. The jury returned a verdict of $25,000 against both defendants. Hayes Company alone appeals. Since De Rose has not appealed, it must be presumed, and appellant concedes, that the evidence shows that the accidentwas proximately caused by the negligence of De Rose. The contentions of appellant are that the evidence shows, as a matter of law, that De Rose, at the time of the accident, was not an employee of the Hayes Company but was an independent contractor; that, even if he was an employee, he was not then acting in the course and scope of his employment; that the trial court erroneously instructed the jury in certain particulars; and that the trial court erroneously refused to give certain instructions proffered by appellant. There is no merit in any of the points urged.

The accident occurred on December 5, 1947. On that date, and for about seven years prior thereto, De Rose was employed as a newspaper distributor by the San Jose Mecury Herald. He was a member of the Teamsters' Union and designated in the governing labor contract as a ‘rural motor deliveryman.’ As such, he made both wholesale and retail deliveries of newspapers every day. In so far as the wholesale route was concerned he was clearly an employee of the newspaper, and no contention is made to the contrary. This route extended from San Jose to Salinas. De Rose, each morning, would pick up about 2,500 newspapers in his own pickup truck at about 1 a. m. and would then drive to Salinas making deliveries to retail distributors in such town along the way. The Mercury Herald billed the agencies receiving these papers and collected from them. De Rose's sole duty as to these papers was to deliver them.

In addition to these wholesale deliveries De Rose operated, and was required to operate as part of his job, a retail route of forty-one customers which was embraced, geographically, within the wholesale route. He purchased these papers from the appellant and then sold them to the retail customers for a profit, the wholesale and resale prices being fixed by appellant. De Rose collected from these retail customers, and any loss sustained was his loss, and not that of the company. De Rose kept the records of these accounts and took care of the billing and bookkeeping. Because he made the deliveries on his wholesale and retail routes very early in the morning, he could not make the collections on his retail route at the time he delivered the papers, and, using his own car, customarily made these collections at night when the farmer customers were at home.

The method of payment to De Rose for these services is not in dispute. He used his own car in making deliveries and collections. He was allowed eight cents a mile for the use of his car while making the wholesale deliveries, and included, geographically, were the retail deliveries. But no mileage allowance was paid for the use of his car while making collections. The retail route was much shorter than the wholesale route, extending but sixteen miles from San Jose. The normal time required to make wholesale and retail deliveries was five and a half to six hours. He normally started to work at 1 a. m. and was home by 6:30 or 7 a. m. Nevertheless, he was paid, pursuant to the terms of the union contract, $1.51 per hour for eight hours each week day, and on Saturday and Sunday he received time and a half for eight hours for not more than six hours of work. These extra two or two and a half hours of wages were paid to De Rose, according to his testimony, as compensation for making the collections on the retail route. Farmer, the circulation manager of the Mercury, and De Rose's immediate superior, admitted that this extra compensation was to pay De Rose for making the collections on his retail route, and to induce him to undertake promotion work for the newspaper.

Under the rules of the newspaper, De Rose was billed each month for the purchase price of the newspapers he delivered to the retail customers, and was required to remit this sum to the newspaper by no later than the 20th of each month. Farmer testified that the retail portion of the route was assigned to De Rose by the Mercury; that this was an integral part of the distributor's job and required of him by the company; that it was his (Farmer's) duty to assign routes; that the retail or wholesale route of any driver could be changed by the company at any time; that drivers were informed by him of the proper and most effective ways of handling the route, including collections; that he did not care when De Rose made his collections, or, in fact, whether De Rose ever collected on these accounts, as long as the company was paid for the papers. De Rose testified that he had to make four to six collection trips each month to collect from all of his customers, and that he was never told by the Mercury what methods he should use in collecting.

De Rose was covered by workmen's compensation insurance through the company, and deductions were made from his total eight hours daily salary for social security and unemployment insurance, and for a group health and death policy. No deductions for these purposes were made from the profits he made on the resale of papers.

The accident in which plaintiff was injured occurred around 9 p. m. on December 5, 1947. At about 5 p. m. on December Rose telephoned to a girl friend and arranged to take her with him that evening while he made some collections on his retail route. This friend, in the past, had frequently accompanied De Rose on such trips, and assisted him while they were driving along by picking out the overdue accounts from the file maintained by De Rose. Pursuant to the prearranged plan, De Rose picked his friend up in his automobile, and they drove along the retail route, making about five or six collection calls. De Rose then returned his friend to her home, where he stayed for about fifteen minutes. He left her home at about 8:45 p. m. He testified that he was then intending to go home. He started in that direction, but at the corner of Park Avenue and Sunol Street in San Jose he decided to take a left turn, which was directly opposite to the most direct route to his home. He testified that he turned in this direction because he was ‘probably’ going to get a couple of magazines. It was while making this turn, and while still in the intersection, that he ran down the plaintiff under circumstances which admittedly support the implied finding that the accident was proximately caused by his negligence.

Farmer testified that he had never told any of the drivers not to take passengers with them on collection trips, and De Rose testified that that was not any of the company's business.

The first and major contention of appellant is that at the time and place of the accident De Rose was not an employee of the appellant but was, as a matter of law, an independent contractor. Various tests have been suggested by the cases to determine this issue, see, Restatement of Agency, § 220, but, as was said in Schaller v. Industrial Acc. Comm., 11 Cal.2d 46, 52, 77 P.2d 836, 839: ‘While these tests are recognized as helpful, yet no special test, or fact, or circumstance has been found to give a conclusive answer to the question, and in the last analysis each case must turn upon its own peculiar facts and circumstances.’

The nature of the relationship, except in unusual cases, is primarily a question of fact. The test, as in the cse of other factual questions, is not what this court would have found under the facts, but whether the finding of the trial court is supported by any substantial evidence, including reasonable inferences from that evidence. Washko v. Stewart, 20 Cal.App.2d 345, 349, 67 P.2d 151; Malvich v. Rockwell, 91 Cal.App.2d 463, 468, 205 P.2d 389; Pacific Lumber Co. v. Industrial Acc. Comm., 22 Cal.2d 410, 422, 139 P.2d 892; Candido v. California Emp., etc., Comm., 95 Cal.App.2d 338, 212 P.2d 558. ‘It is only where but one inference can reasonably be drawn from the evidence that the question of whether one is an employee or an independent contractor becomes one of law for the court.’ Burlingham v. Gray, 22 Cal.2d 87, 100, 137 P.2d 9, 16; to the same effect see National Auto., etc., Co. v. Ind. Acc. Comm., 80 Cal.App.2d 769, 772, 182 P.2d 634; Perguica v. Ind. Acc. Comm., 29 Cal.2d 857, 859, 179 P.2d 812.

In our opinion the record contains ample and substantial evidence to support the implied finding that De Rose, in making the collections, was an employee of the appellant. This evidence can be classified in two main categories:

1. There was substantial evidence that appellant had the right to control De Rose in the manner in which he made collections. ‘A material and often conclusive factor is the right of an employer to exercise complete and authoritative control of the mode and manner in which the work is performed. The existence of such right of control, and not the extent of its exercise, gives rise to the employer-employee relationship.’ Perguica v. Ind. Acc. Comm., 29 Cal.2d 857, 859, 179 P.2d 812, 813. Farmer, the circulation manager of appellant, testified that if he had given De Rose instructions as to his collections, that is ‘how to do it or when to do it,’ he would have expected those instructions to be followed. Admittedly, the retail route, including collections, was an integral part of the job, and De Rose was required to take it as part of his job. Admittedly, the retail route was assigned to De Rose by the appellant, and admittedly that company could change or increase or decrease that route at any time. Farmer testified that the retail distribution was assigned to De Rose for the convenience of the paper; that De Rose had been informed that the ‘collections and promotions on that [retail] route are up to him as an employee,’ and that De Rose was informed by appellant of the proper and most effective ways of handling that business. Farmer also testified that, although the main interest of appellant was in seeing to it that De Rose paid his bill to the paper and not in whether the retail customers paid De Rose, nevertheless it was to the interest of the company that these collections be made regularly; that De Rose would not have been a satisfactory employee unless he collected regularly; and that unless he collected regularly he would not have been permitted to keep his job.

2. The next important factor that must be considered is the manner of payment. Admittedly, the delivery of papers on both the wholesale and retail routes took but five and a half or six hours, yet De Rose was paid at an hourly rate for a full eight hours. De Rose testified that this extra compensation was to pay him for the time consumed in making the collections on his retail route, and Farmer admitted the extra pay was for the purpose of allowing De Rose to do collection and promotion work. It must be remembered that this extra compensation was paid pursuant to appellant's contract with the union, and that neither in that agreement, nor outside of it, was there any differentiation made between wholesale and retail routes. It must also be remembered that from the full eight hours of wages, deductions were made by appellant for federal income taxes, federal unemployment insurance, social security taxes, and a group health insurance plan. Such deductions are normally made only from the wages of an employee, and not from those of an independent contractor. Farmer testified that deductions were made only from employees' wages and not from the income of independent contractors, and that the company considered only the retail distributors on the wholesale route as independent contractors. This belief of the parties as to the nature of the relationship as indicated by their actions in entitled to some weight. Perguica v. Ind. Acc. Comm., 29 Cal.2d 857, 860, 179 P.2d 812; Restatement of Agency, § 220(i).

Under this evidence it clearly was a jury question as to whether De Rose was an employee or an independent contractor. In the case of Burlingham v. Gray, 22 Cal.2d 87, 137 P.2d 9, where the facts in support of the employer-employee relationship were much weaker than those here involved, this rule was established. In that case the trial court had ruled that, as a matter of law, one Gray and one Porter were not employees of the newspaper, and directed its verdict accordingly. This was unanimously reversed by the Supreme Court, it being held that the issue was a jury question. The evidence shows that one Porter, under contract with the newspaper, was a distributor of the paper in a portion of the county. Gray was hired by Porter as one of the carriers to distribute the papers to Porter's customers within his district, and was paid by Porter $50 a month. The basic question was whether Porter, the distributor, was an employee or independent contractor. The written contract between the newspaper and Porter designated him as an independent contractor. Under that contract Porter's income came from the difference between the wholesale price he paid the newspaper company for the papers, and the retail price he charged his customers, less expenses. In addition, pursuant to a separate oral agreement between Porter and the newspaper, Porter was paid $2.00 per week, less social security benefits, by means of a regular payroll check of the company, for picking up a bundle of papers at Anaheim and delivering them to an agent at Orange. At the time of the accident, Gray, the carrier, was delivering copies of the newspaper to subscribers and also had in his possession the bundle of papers required to be delivered at Orange. The Supreme Court looked beyond the precise terms of the contract between Porter and the newspaper, see, also, Pacific Lbr. Co. v. Ind. Acc. Comm., 22 Cal.id 410, 139 P.2d 892; Candido v. California Emp., etc., Comm., 95 Cal.App.2d 338, 212 P.2d 558; Lewis v. Constitutional Life Co., 96 Cal.App.2d 191, 215 P.2d 55, and emphasized the fact that the evidence showed that Porter always seemed to carry out the suggestions of the company. The Court also emphasized the fact that (as in the instant case) it was the newspaper that fixed the wholesale price it charged Porter, and also the price Porter charged his customers. Other matters mentioned by the Court as tending to show an employer-employee relationship were that Porter received $2.00 a week, less social security deductions, from the company; that he was a member of a group hospitalization plan for employees of the newspaper; that Porter received an annual vacation with pay; that the newspaper reserved the right to terminate Porter's agency at any time; and that the newspaper supervised Porter's activities. The Court held that, under these facts, a jury might have inferred ‘that the company's right of control over Porter as dealer was complete and that any instructions given to Porter would be obeyed.’ 22 Cal.2d at page 101, 137 P.2d at page 16. The Court said that if Porter had failed to comply with the company's ‘suggestions,’ it could have discharged him. It might also have compelled him to follow their suggestions by changing the wholesale and retail prices. ‘In the light of the foregoing discussion, it is difficult to conceive of a much more complete control of an employee doing work of a character inherently embodying some freedom of action than that which the company had the power to exercise over the dealer Porter.’ 22 Cal.2d at Page 102, 137 P.2d at page 17. The Court concluded that the provision of the contract allowing discharge if Porter was unsatisfactory in any manner, plus the fact that Porter accorded implicit obedience to the suggestions of the company, indicated a power of control by the employer over the means as well as the ultimate result. The Court concluded by holding that the problem was a jury question and reversed the directed verdict.

The case stands for the proposition that doubtful cases involving this issue must be submitted to the trier of the facts. The factual situation there involved was much weaker than that in the instant case, and it would appear that the decision is controlling here. See, also, Pacific Lbr. Co. v. Ind. Acc. Comm., 22 Cal.2d 410, 139 P.2d 892; Candido v. California Emp., etc., Comm., 95 Cal.App.2d 338, 212 P.2d 558; Lewis v. Constitution Life Co., 96 Cal.App.2d 191, 215 P.2d 55.

Appellant lays stress on the fact that De Rose testified that he made collections when he wanted to; that he made them in the evening because it was most convenient for him and his customers at that time; that he regarded it as nobody's business if he took passengers with him; and that he felt free on such trips to make deviations from the most direct route if he so desired. Aside from the fact that if this evidence does support the argument that De Rose was an independent contractor it merely creates a conflict with other evidence, it is our belief that such evidence is not inconsistent with De Rose being an employee while making these collections. In the very nature of things De Rose had to make the collections when his customers were home, and he and not the newspaper knew that fact. Moreover, as was said in the Burlingham case, 22 Cal.2d at page 100, 137 P.2d at page 16: ‘* * * the fact that a certain amount of freedom of action is inherent in the nature of the work does not change the character of the employment where the employer has general supervision and control over it.’ This is well-settled law.

It is true that there are other cases holding that, under certain circumstances, a newspaper distributor may be an independent contractor as a matter of law, but the facts of all of these cases are readily distinguishable from those involved here. Thus, in Rathbun v. Payne, 21 Cal.App.2d 49, 68 P.2d 291, where this appellate court, in reversing a judgment for plaintiff, held, as a matter of law, that one Asbitt was an independent contractor and was not an employee of the newspaper, the reversal was based on the lack of any evidence of the right to control the means to be used by the distributor. Asbitt's sole duty was to deliver papers on a retail route, and he received no hourly wages, his profits being dependent on commissions. The same can be said of Bohanon v. James McClathchy Pub. Co., 16 Cal.App.2d 188, 60 P.2d 510, relied upon in the Rathbun opinion. There, too, the appellate court reversed a judgment against a newspaper, but that case involved almost entirely the proper interpretation of a written contract between the parties. The court gave great weight to the fact that, unlike the instant case, no fixed compensation was paid the distributor for his services, and the distributor there involved was solely a retail distributor.

In the Bohanon case the court relied upon State Comp. Ins. Fund v. Indus. Acc. Comm., 216 Cal. 351, 14 P.2d 306, as controlling. A reading of that opinion demonstrates that the court held that the decisive factor was that the distributor, who hired boys to distribute the papers he purchased wholesale, was not paid any fixed wages or compensation by the newspaper for his services. That serves to distinguish that case from the instant one. The court emphasized, citing Globe Indemnity Co. v. Industrial Acc. Comm., 208 Cal. 715, 284 P. 661, and Call Pub. Co. v. Industrial Acc. Comm., 89 Cal.App. 194, 264 P. 300, that if the distributor were paid a regular salary or compensation, as in the instant case, the rule might be different.

There is undoubtedly general language in these cases somewhat inconsistent with that employed by the court in the Burlingham case, but all of these cases, factually, are distinguishable from the Burlingham case and from the instant one. Moreover, to the extent that these earlier decisions are inconsistent with the Burlingham case the latter, being later in time, must control. We think the proper rule is and should be that if the issue is reasonably debatable (as is certainly true in the instant case), the question is a jury question and not one for the court as a matter of law.

The next main question is whether De Rose had deviated from the course of his employment at the time of the accident. Appellant seems to contend that, because De Rose was on his way home at the time of the accident, he was not acting in the course and scope of his employment. This would seem to be a question of fact and not a question of law. See note in 33 Cal.L.Rev. 646. While there is substantial authority for the rule that, where the facts are undisputed, the question of liability is one of law and not of fact, the rule of law in this state, as expressed by the majority of the court in Loper v. Morrison, 23 Cal.2d 600, 145 P.2d 1, is that in such cases the question is one of fact for the jury and not one of law for the court. This conclusion seems to us sound, and is in accordance with the general rule elsewhere. 57 C.J.S., Master & Servant, page 408, § 617; 3 Cooley on Torts, p. 68, § 396; Restatement of Agency, § 228(2); but see 35 Am.Jur. p. 1040, § 600.

In considering this problem, the so-called ‘going and coming rule’—i.e., that an employee is not acting in the course and scope of his employment while going to or coming from work—is not involved. That rule is applicable where the employee is required to perform services at a fixed place on particular premises, and has no application where the duties are to be performed over a wide territory, and the hours and place of employment are more or less discretionary with the employee. Makins v. Industrial Acc. Comm., 198 Cal. 698, 703, 247 P. 202, 49 A.L.R. 411; Truck Ins. Exchange v. Ind. Acc. Comm., 27 Cal.2d 813, 818, 167 P.2d 705; 1 Campbell on Workmen$hs Compensation, p. 191, § 200. This exception is strengthened where the use of a motor vehicle is required by the employment and is not furnished by the employer. Campbell, p. 193, § 201. In such cases, whether the car is furnished by the employer or employee, where the car is kept at the employee's home, the duties of the employee do not cease until the automobile arrives at the home of the employee. Campbell, p. 174, § 185. De Rose can be compared to the commercial traveler who uses his own car. Such employees ‘may be regarded as acting in the course of their employment so long as they are traveling in their employer's business, including the whole period of time between their starting from and returning to their place of business or home.’ California C. I. Exch. v. Indus. Acc. Comm., 5 Cal.2d 185, 186, 53 P.2d 758, 759.

But, says appellant, De Rose deviated from the course of his employment either in taking his girl friend home, or, after he did so, in turning away from the most direct route to his home to purchase some magazines. Under the facts these were jury questions. As was said in Loper v. Morrison, 23 Cal.2d 600, 605, 145 P.2d 1, 3: ‘The general rule in these cases is stated in Kruse v. White Bros., 81 Cal.App. 86, 93, 253 P. 178, recently quoted with approval in Westberg v. Willde, 14 Cal.2d 360, 373, 94 P.2d 590, 597; ‘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.’' See, also, Lockheed Aircraft Corp. v. Ind. Acc. Comm., 28 Cal.2d 756, particularly at pages 758–760, 172 P.2d 1; 57 C.J.S., Master & Servant, p. 408, § 617. There can be no doubt that under the facts the jury was entitled to infer that the company knew that distributors customarily took passengers on their collection trips, and not only did not object but impliedly consented. This being so, it was not a deviation from the employment as a matter of law for De Rose to take his passenger home after such a collection trip. The same must be held as to the turn away from the most direct route home to purchase some magazines. Whether that was so substantial a deviation as to take it out of the employment, or whether it was so slight a deviation as to be impliedly included therein, was properly submitted to the jury, and its determination, under the facts, cannot be disturbed.

Objection is made to several of the instructions. At the request of respondent the court instructed ‘that if you find that the defendant Ernest Carmen De Rose deviated or departed from the ordinary or direct route which his mission required him to pursue you must then find whether such deviation or departure was of such a character,

‘1. As was contemplated by the employment, or ought to have been foreseen by the defendant Hayes Company, or

‘2. That it was such that the defendant Hayes Company would have consented to had it known thereof.

‘In the event that you find that such deviation or departure comes within either of the above two subdivisions then you must find the defendant Hayes Company liable to plaintiff if you find the defendant De Rose liable to plaintiff.’

After several hours of deliberation the jury asked for a re-reading of this instruction and it was twice re-read to the jury. Appellant argues that such instruction was incorrect because an employer may consent to a deviation without authorizing it. The sole authority cited in support of this contention is the Restatement of Agency, § 229, comment c, which declares that acts of a personal nature permitted by the employer to make the employment more desirable are not necessarily within the scope of the employment.

The instruction contains a correct statement of law. It is almost a verbatim quotation from 2 Cal.Jur.Supp. p. 515, § 333, which cites many cases in support of the rule that a recovery is sustainable on proof of either of the two factors mentioned in the instruction. The rule in this state is that where an employee is engaged on a trip which combines his personal business with that of his employer, the employer may be liable for the employee's tortious acts. Gayton v. Pacific Fruit Express Co., 127 Cal.App. 50, 15 P.2d 217; Aubel v. Sosso, 72 Cal.App. 57, 236 P. 319; Dolinar v. Pedone, 63 Cal.App.2d 169, 146 P.2d 237. In Kruse v. White Brothers, 81 Cal.App. 86, 92, 253 P. 178, 181, the Court stated that where the master's business is the controlling purpose of the trip ‘usual or incidental personal 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’. See, also, Loper v. Morrison, 23 Cal.2d 600, 606, 145 P.2d 1.

Appellant also objects to the failure of the trial court to give its instruction 58–A. The proffered instruction was as follows.

‘I instruct you that ‘an act of a servant or an agent is not within the scope of employment if it is done with no intention to perform it as a part of or incident to a service on account of which he is employed.’ If you find that at the precise time and place of the accident in suit the defendant De Rose was entertaining no intention to serve his employer, he was not acting within the scope of his employment as a matter of law and you cannot find otherwise.

‘I further instruct you that if the defendant De Rose had no such intention at the time and place of the accident in suit, you are to return a verdict in favor of the defendant Hayes Company.’

The instruction, as applied to some facts, undoubtedly embodies a correct statement of the law and is set forth in the Restatement of Agency, § 235. That section reads: ‘An act of a servant is not within the scope of employment if it is done with no intention to perform it as a part of or incident to a service on account of which he is employed.’ The comment on the rule says that: ‘* * * It is the state of the servant's mind which is material.’

While the instruction undoubtedly embodies a correct statement of general law, it is doubtful whether that principle is applicable at all to a deviation case. Once it is determined that the collection trip was a part of and incident to De Rose's employment, the fact that the collections were completed and De Rose was on the way home is immaterial, because going home was an incident of the employment, so that the intention of De Rose at the ‘precise’ time of the accident is a false factor. Moreover, another and complete answer to this contention is that the court fully, fairly and completely covered the issue of scope of employment by giving respondent's instructions 26 and 29 and appellant's instruction 55. These instructions adequately covered this issue.

The last major contention of appellant is that the trial court erred in failing to give appellant's proffered instruction on burden of proof. The instruction refused by the court reads as follows: ‘If you find in plaintiff's favor on the issues of negligence and contributory negligence, as against the defendant Hayes Company, you have another issue to determine, namely, was defendant De Rose within the scope of his employment, that is, ‘on the job’ or doing work for the Hayes Company at the time and place of the accident. Legally we call this being ‘within the scope’ or ‘without the scope’ of employment. The burden is on plaintiff to prove by a preponderance of the evidence that issue also. If you find that the defendant De Rose was not within the scope of his employment for the Hayes Company at the precise time of the accident in suit, your verdict must be in favor of the Hayes Company.'

This instruction was properly refused. To be within ‘the scope of employment’ does not require the employee to be literally ‘on the job,’ or ‘doing work for’ the company at the precise time of the accident. As already pointed out, there is substantial evidence to support the implied finding that De Rose, after finishing his collections, was on his way home from that trip and was still within the scope of his employment, although he was not then technically ‘on the job’ or ‘doing work for’ the company. Moreover, if going home, in such cases, can be considered as ‘doing work for’ the employer, while the burden is on the plaintiff to show that the servant was acting within the scope of his employment, it is also true that a prima facie case is established by a showing that the alleged servant at the time of the challenged occurrence was performing work and labor for his claimed employer. Upon such a showing the burden of going forward with the evidence shifts to the employer. See cases collected 16 Cal.Jur. p. 1110, § 67; see, also, Lewis v. Constitution Life Co., 96 Cal.App.2d 191, 215 P.2d 55; Restatement of Agency, § 228, comment b. Thus, the proffered instruction would have been highly confusing and misleading, and was properly refused.

It should be mentioned that the court did give the usual instruction that the burden of proof was on the plaintiff and that the plaintiff must prove his case by a preponderance of the evidence. Under the circumstances, and no proper instruction having been offered by appellant, the instructions given were sufficient.

The judgment is affirmed.

PETERS, Presiding Justice.

BRAY and FRED B. WOOD, JJ., concur.

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