GONCALVES v. Joe Menezes, Defendant and Appellant.*

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District Court of Appeal, Fifth District, California.

Delfina GONCALVES, Plaintiff, Respondent and Appellant, v. LOS BANOS MINING COMPANY et al., Defendants and Respondents, Joe Menezes, Defendant and Appellant.*

Civ. 79.

Decided: June 29, 1962

Robert R. Elledge, Modesto, Chadeayne & Wilkinson, Tracy, Kroloff, Brown, Belcher & Smart, Stockton, for plaintiff and appellant. McCormick, Barstow, Sheppard & Coyle, Fresno, for defendant and appellant. Zeff, Halley & Price, Modesto, for respondents.

Delfina Goncalves, widow of Ernest Goncalves, sued for damages caused by his death in an intersection collision between a car driven by Joe Menezes, in which he was riding as a guest, and an automobile operated by Marjorie J. Buffuna (now remarried under the name of Sanchez); the accident occurred at an intersection of country roads on the west side of Merced County between Los Banos and Newman. The theory upon which Menezes was sued was that he was guilty of wilful misconduct; and it was claimed that Mrs. Buffuna (Sanchez) was negligent while acting in the course of her admitted employment by Los Banos Mining Company. The jury brought in a verdict for the plaintiff against Joe Menezes and for the defendants Los Banos Mining Company and Marjorie Buffuna (Sanchez) as against the plaintiff. The plaintiff appeals with respect to the judgment in favor of Los Banos Mining Company and Mrs. Buffuna (Sanchez), and Menezes appeals from the judgment against him for $25,000.

The appellants do not claim that there was any error in the pleadings, in the rulings of the court or in the instructions, and base their appeals wholly on the ground that the evidence does not warrant the jury's verdict, or the judgment based upon it. The appellant Menezes also urges that his motion for judgment notwithstanding the verdict should have been granted and asks that a judgment be ordered in his favor.

The fatal accident occurred on October 9, 1957, at approximately 10:30 o'clock a. m. On that morning Joe Menezes, Frank Deniz and his wife and Ernest Goncalves, the decedent, had attended a funeral in Los Banos. All of the occupants of the car were adults and were related to each other by marriage; Menezes was a son-in-law of the decedent and Deniz a brother of the plaintiff. They were returning home to the Newman area in a car driven by Joe Menezes, which was proceeding in a westerly direction on Pioneer Road toward its intersection with Ortegalita Road, a through highway guarded by stop signs. Both were straight, level roads traversing a flat farming country.

Menezes was traveling at a speed which he said was about 40 miles an hour, but which he admitted might have been as fast 60 miles per hour; the witness Frank Deniz estimated the speed to be 60 miles an hour at a point approximately 200 feet from the intersection.

Deniz and his wife were in the back seat, and the decedent occupied the front seat, to the right of the driver. No radio was playing in the car, and there had been little or no conversation among the occupants on their way from the funeral. No one in the Menezes car had at any time protested or commented upon the speed at which Menezes was driving or with respect to anything about the manner in which he operated the car. Mr. Deniz said that when the automobile was about 200 feet from the intersection he heard the decedent say to the driver, ‘Joe, look, there is a stop ahead.’ The stop sign which regulated traffic westbound on Pioneer Road at the intersection with Ortegalita is apparent in the picture showing the locus of the accident. Menezes did not apply his brakes in response to this statement of the decedent or make any application of them until immediately before the collision at the instant when he saw the other car and was on the point of colliding with it.

The evidence shows that Menezes' hearing was good. There is some testimony that might possibly lead to a doubtful inference that his eyesight was imperfect. He was not wearing glasses at the time; a year later he had a cataract operation; however, he testified that his eyesight was good at the time of the accident, and there is no evidence that he thought or knew that it was not.

Menezes admitted that he did not look either to his right or left as he approached the intersection. The field on his right was planted to low-growing crops; there were some weeds two or three feet high at the corner and some amount of interference with vision as to a part of the intersecting road by reason of the presence of trees. But the picture introduced in evidence showed that if he had looked he would have been able to see a southerly driven car on Ortegalita for a considerable distance. Menezes had never traveled on either road prior to the time of the collision.

The record is silent as to whether visibility by reason of weather conditions was good or bad, except that pictures taken later on the same day showed that the roads were dry, and the sun was shining. Similarly, though it is established by the record that the two roadways were, in general, well traveled, there is no specific mention of traffic on either highway other than the two automobiles directly involved.

The other automobile was driven by Mrs. Buffuna (Sanchez), admittedly acting in the course of her employment by Los Banos Mining Company; she was traveling south on Ortegalita Road. She testified that she knew that Ortegalita was a through highway, that she was thoroughly familiar with it, having traveled it many times, and she was aware that there was a stop sign at the intersection regulating traffic on Pioneer Road. She stated that she was looking in a southerly direction along the through highway as she approached the intersection and that she did not look to her left for any car which might be traveling westerly on Pioneer Road, because she was looking in the direction in which she was driving and knew such vehicles were required to stop before they entered her roadway.

THE APPEAL OF GONCALVES AS TO LOS BANOS MINING COMPANY AND BUFFUNA (SANCHEZ)

In order to warrant a reversal of the judgment as to Los Banos Mining Company and Buffuna (Sanchez) we would necessarily have to find that there is no substantial evidence in the record to support the implied finding of the jury that she was not negligent or that her negligence, if any, was not a proximate cause of the collision.

The firmly established rule, so well expressed in Crawford v. Southern Pac. Co., 3 Cal.2d 427, 429, 45 P.2d 183, 184, must be applied:

‘It is an elementary, but often overlooked, principle of law, that when a verdict is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury. When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court.’

The determination of what a reasonably prudent person should have done or omitted to do in given circumstances depends in the last analysis upon the experience and good sense of the jury in weighing the evidence, and it is rare that an appellate court may lay down in explicit and detailed terms what a reasonably prudent person should have done or should not have done in opposition to an implied finding of negligence or of due care by a jury. It was primarily a question for the jury in this case to determine whether in the circumstances shown by the record Mrs. Buffuna (Sanchez) was guilty of negligence. (35 Cal.Jur.2d, Negligence, § 201, p. 722; 36 Cal.Jur.2d, Negligence, § 342, p. 84.)

The record shows that Mrs. Buffuna (Sanchez) was driving over a road with which she was familiar; she knew it was a through highway protected by stop signs. She said that she did not look to her left, because she was concerned where she was driving. ‘I was concerned, as I was driving straight ahead, of what was ahead of me in the road. Like I say, I know the stop sign was there and they are supposed to stop.’

It is, of course, the duty of an operator of a vehicle at all times to do what a reasonably prudent person would have done in the same or similar circumstances, and the jury was fully and properly so instructed.

In considering the evidence as to negligence, the jury was entitled to give due weight to the fact that Mrs. Buffuna (Sanchez) knew that there was a stop sign at the point where Pioneer Road and Ortegalita intersected. Flannery v. Koch, 103 Cal.App.2d 55, 59, 228 P.2d 580, 583, a case factually very much resembling the instant action, observes:

‘* * * the judgment against Koch must be reversed since we do not find in the record any evidence of negligence on his part. He was driving at a lawful speed on a through street protected by stop signs; he was familiar with the street and knew the stop signs were located at the intersection of Carlyle Avenue; he had the right to assume that cars, including that of Miss Liberto, would stop before entering the through highway and would yield the right of way to him. [Citing cases.]’

In Shiya v. Reviea, 122 Cal.App.2d 155, 163, 264 P.2d 190, 196, it is said:

‘The reasonableness of the conduct of a person relying upon the assumption that another will obey the law is primarily a question for determination by the trier of fact.’

Appellant Goncalves contends that the following excerpt from Beseau v. George, 111 Cal.App.2d 807, 809–810, 245 P.2d 542, 544, applies:

‘While one has the right to expect the driver of an approaching vehicle to obey the law, and is not necessarily negligent in failing to anticipate danger that would come only through violation of law, the requirements of due care do not permit him to be indifferent to the movements of such other vehicle. He must exercise ordinary care to observe whether the driver of the other vehicle is proceeding in violation of law, and he must conform his own conduct to standards of common prudence and caution.’

The Shiya case, supra, 122 Cal.App.2d 155, at page 163, 264 P.2d 190, 196, also holds:

‘The court stated that the driver of the car on the through highway had the right to assume that the driver of the truck would obey the law and stop, and yield the right of way. However, this statement is subject to the general rule that the driver on the through highway must also be exercising due care at that time.’

(See also Carlson v. Shewalter, 110 Cal.App.2d 655, 658–659, 243 P.2d 549.)

If Mrs. Buffuna (Sanchez) had looked to her left toward Pioneer Road, it is by no means certain just when in the exercise of due care she would have been made aware of the fact that Menezes did not intend to stop; this is a question of fact that the jury had to determine.

In fact, the duty of ascertaining whether due care was exercised by Mrs. Buffuna (Sanchez) was a question that was peculiarly within the cognizance of the finder of fact. In Shivers v. Van Loben Sels, 109 Cal.App.2d 286, 289, 240 P.2d 635, 637, it is said:

‘He can only be charged with negligence under such circumstances from the time he had knowledge, or in the exercise of ordinary care should have known, that the Pontiac was going to disregard that stop sign and enter the highway. After such knowledge, he was bound to use the care of an ordinary prudent person. [Citing cases.] Whether a person exercises the required degree of care is ordinarily one for the jury. Whether White, as an ordinary prudent person, should have reduced his speed, should have seen the Pontiac before he did and realized sooner that it was not going to make the required stop, or should have done any other act that an ordinary prudent person would have done under the circumstances, were questions addressed to the jury.’

And even if the jury did conclude that the driver of the Buffuna (Sanchez) car was negligent, still the question of whether such negligence was a proximate cause of the collision was a matter to be determined by the jury. As is said in Thompson v. Steveson, 52 Cal.App.2d 250, 253, 126 P.2d 127, 129:

‘The question of whether or not proven negligence is the proximate cause of an injury is usually one of fact addressed to the trier of fact.’ (Citing Mecchi v. Lyon Van & Storage Co., 38 Cal.App.2d 674, 102 P.2d 422, 104 P.2d 26.)

Mr. Presiding Justice Peters repeats the general rule in Gunter v. Claggett, 65 Cal.App.2d 636, 641, 151 P.2d 271, 273:

‘Once negligence is proved, whether such negligence is or is not a, or the, proximate cause of the accident, is normally a question of fact for the jury.’

(See also Thompson v. Steveson, supra, 52 Cal.App.2d 250, 126 P.2d 127; Salas v. Whittington, 77 Cal.App.2d 90, 174 P.2d 886; Been v. Lummus Co., 76 Cal.App.2d 288, 173 p.2d 34; Jones v. city of Los Angeles, 104 Cal.App.2d 212, 231 P.2d 167; Agovino v. Kunze, 181 Cal.App.2d 591, 5 Cal.Rptr. 534; Turkovich v. Rowland, 106 Cal.App.2d 445, 235 P.2d 123; Lowenthal v. Mortimer, 125 Cal.App.2d 636, 270 P.2d 942; O'Hey v. Matson Navigation Co., 135 Cal.App.2d 819, 288 P.2d 81; Grigsby v. Pacific Gas & Electric Co., 182 Cal.App.2d 64, 5 Cal.Rptr. 616.)

The appellant Goncalves is mistaken in claiming that the burden of proof was upon the defendants Los Banos Mining Company and Buffuna (Sanchez) to show that the proximate cause of the accident was not attributable to negligence on her part. The general rule applicable to intersection collision accidents as that the burden of proof not only of negligence but of proximate cause is upon the plaintiff. (35 Cal.Jur.2d Negligence, § 71, p. 577.) The jury was so instructed. The appellant Goncalves bases her contention principally upon Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1, 5 A.L.R.2d 91, and upon the line of malpractice cases involving the doctrine of res ipsa loquitur. (Ybarra v. Spangard, 25 Cal.2d 486, 154 P.2d 687, 162 A.L.R. 1258.) These cases involve situations where by the nature of things it would be impossible or highly improbable that a plaintiff who had been injured could establish which one of several defendants was responsible. The Summers case, supra, involved two hunters who both negligently fired in the direction of the plaintiff at the same time and were ‘treated as liable on the same basis as joint tort feasors.’ (33 Cal.2d p. 88, 199 P.2d p. 5) The res ipsa loquitur situations in malpractice cases usually involve operations performed while a plaintiff is under a general anesthetic and it is claimed that a number of doctors and others are responsible, but the patient is without means of identifying which one or more of the defendants should be held. These authorities are exceptions to the general rule that a plaintiff in a tort case has the burden of proof and the duty of going forward with the evidence as to proximate cause. The evidence as to the facts of the occurrence was before the jury, and it would be anomalous to hold that the respective defendants in a situation such as presented here would have the burden of proof as to proximate cause. Plaintiff did not rely upon res ipsa loquitur and did not offer instructions on this theory; the doctrine is inapplicable. (Phillips v. Noble, 50 Cal.2d 163, 323 P.2d 385.)

Let us suppose, for example, that the jury in its deliberations had determined that Mrs. Buffuna (Sanchez) was negligent in not looking to her left and that if she had looked toward the east she would have realized at some instant that the automobile driven by Menezes would not stop at the stop sign; the jury might well have concluded on the basis of the time and space elements involved that if she had performed what they considered her full duty under the hypothesis she could not possibly have avoided a collision, or, in other words, that her negligence was not a proximate cause of the collision.

It was the proper function of the jury in the circumstances developed by the record to determine whether Mrs. Buffuna (Sanchez) was negligent and if so, whether such negligence was a proximate cause of the collision.

THE APPEAL OF JOE MENEZES

Stated most strongly against the appellant, as we must under proper appellate technique, the evidence shows that Menezes was driving his automobile at approximately 60 miles per hour over a country road which he had never traveled before; he admitted the obvious, that he knew there were crossroads in this community, as he had lived 50 years in the west side country. To his right, as he approached the intersection, he could have had a view for several hundred feet along the intersecting road in the direction from which the other car was being driven. He had before him a stop sign which required that he bring his car to a halt before entering the intersection. He was warned that there was a stop sign ahead while he was approximately 200 feet away from it. Yet, he looked straight ahead, did nothing in discharge of his duty and entered the intersection where the collision occurred. Under these circumstances, was the jury entitled to find that he was guilty of wilful misconduct, that is to say, that he intentionally did something forbidden by law or by the requirement of due care either with a knowledge that serious injury was a probable result or with a wanton and reckless disregard of its possible result? (Meek v. Fowler, 3 Cal.2d 420, 426, 45 P.2d 194.)

Wilful misconduct means the intentional doing of something wrong in the operation of a vehicle either with a knowledge that serious injury to a guest will probably result, or with a wanton and reckless disregard of the possible consequences. (Gillespie v. Rawlings, 49 Cal.2d 359, 367, 317 P.2d 601; Olson v. Jones, 172 Cal.App.2d 539, 544, 342 P.2d 440.)

It has been held repeatedly that the mere failure to perform a statutory duty is not in and of itself wilful misconduct. (Mish v. Brockus, 97 Cal.App.2d 770, 218 P.2d 849; Flannery v. Koch, supra, 103 Cal.App.2d 55, 228 P.2d 580.) In Winn v. Ferguson, 132 Cal.App.2d 539, 542, 282 P.2d 515, 517, it is said:

‘A finding of wilful misconduct cannot be predicated upon mere inadvertence or even gross negligence.’

(See also Parrett v. Carothers, 11 Cal.App.2d 222, 226–227, 53 P.2d 1023; Porter v. Hofman, 12 Cal.2d 445, 448, 85 P.2d 447; Stewart v. Kelly, 68 Cal.App.2d 122, 126, 155 P.2d 850; Stacey v. Hayes, 31 Cal.App.2d 422, 429, 88 P.2d 165; Olson v. Jones, supra, 172 Cal.App.2d 539, 342 P.2d 440.)

The appellant Menezes points out that even assuming the correctness of the evidence that he was traveling at 60 miles per hour and comparing that fact with the prima facie speed limit of 55 miles per hour (Clark v. Pamplin, 147 Cal.App.2d 676, 679, 305 P.2d 950), the result would not be negligence as a matter of law (Hardin v. San Jose City Lines, Inc., 41 Cal.2d 432, 260 P.2d 63; In re Ryan, 61 Cal.App.2d 310, 313–314, 142 P.2d 769; Faselli v. Southern Pacific Co., 150 Cal.App.2d 644, 648, 310 P.2d 698); it would have been incumbent upon a plaintiff to prove that the speed as actually employed in the circumstances was negligent. And the appellant Menezes further observes that even if this speed were negligent, it would not in and of itself amount to wilful misconduct. (Katz v. Kuppin, 44 Cal.App.2d 406, 408, 112 P.2d 681; McCann v. Hoffman, 9 Cal.2d 279, 281, 70 P.2d 909; Meek v. Fowler, supra, 3 Cal.2d 420, 426, 45 P.2d 194.)

Appellant Menezes further points out that there was no evidence of erratic driving or of any protest by any occupant of the car with respect to the manner in which the vehicle was being operated. On the other hand, respondent Goncalves calls attention to the evidence that appellant Menezes knew that there were intersections, generally speaking, on the country roads in this general area, that it should have occurred to him that if he drove across such intersections he might be involved in an accident, that he looked neither to the right nor to the left, that his vision was not grossly obstructed, that he failed to heed decedent Goncalves' warning, that the stop sign was visible, and that he was exceeding the prima facie speed limit, on a strange road.

Respondent Goncalves also points out that the court gave the following instruction approved in Anderson v. Hawkins, 100 Cal.App.2d 490, 495–496, 223 P.2d 857, and in Johnson v. Marquis, 93 Cal.App.2d 341, 354, 209 P.2d 63, 71:

‘When there is a question whether a driver conducted himself with knowledge that serious injury to a guest probably would result from his conduct, proof of such knowledge does not have to be by direct evidence. The jury has a right to infer that the driver had such knowledge, if such an inference may reasonably be drawn from facts in evidence, and if the judgment of the jury so directs.’

and argues that the jury was within its rights in inferring from the evidence that Menezes acted with the requisite knowledge and intention.

The Legislature, for what appeared to it to be good reasons (see Historical Note to section 17158, West's Annotated California Veh.Code), enacted the present law which provides that a guest can not recover from his host in an automobile damage case for simple or even gross negligence, but that recovery, if allowed, must be founded either on intoxication or on the wilful misconduct of the driver. There is no contention that intoxication enters the present picture, so that recovery, if permissible, must be based wholly on wilful misconduct. it is obvious that if a jury be permitted to infer wilfulness on the part of a host from the mere fact that an accident accompanied by negligence or gross negligence occurred, the enactment of the Legislature will be constantly set aside and violated by jury verdicts based on the usual rule of negligence.

Wilful misconduct is thus defined in the leading case of Meek v. Fowler, supra, 3 Cal.2d 420, 425–426, 45 P.2d 194, 197:

‘The case of Howard v. Howard, 132 Cal.App. 124, 128, 22 Pac.(2d) 279, 281, after defining gross negligence as set forth in Krause v. Rarity, 210 Cal. 644, 293 Pac. 62, 77 A.L.R. 1327, and what is meant by willful misconduct as set forth in Helme v. Great Western Milling Co., 43 Cal.App. 416, 185 Pac. 510, declares that: “The mere failure to perform a statutory duty is not, alone, willful misconduct. It amounts only to simple negligence. To constitute ‘willful misconduct’ there must be actual knowledge, or that which in the law is esteemed to be the equivalent of actual knowledge, of the peril to be apprehended from the failure to act, coupled with a conscious failure to act to the end of averting injury.'

“While the line between gross negligence and willful misconduct may not always be easy to draw, a distinction appears from the definition given in that gross negligence is merely such a lack of care as may be presumed to indicate a passive and indifferent attitude toward results, while willful misconduct involves a more positive intent actually to harm another or to do an act with a positive, active, and absolute disregard of its consequences. It seems clear that in excluding all forms of negligence as a basis for recovery in a guest case, the Legislature must have intended that to permit a recovery in such a case the thing done by a defendant must amount to misconduct as distinguished from negligence, and that this misconduct must be willful. While the word ‘willful’ implies an intent, the intention referred to relates to the misconduct and not merely to the fact that some act was intentionally done. In ordinary negligence, and presumably more so in gross negligence, the element of intent to do the act is present and any negligence might be termed misconduct. But willful misconduct as used in this statute means neither the sort of misconduct involved in any negligence nor the mere intent to do the act which constitutes negligence. Willful misconduct implies at least the intentional doing of something either with a knowledge that serious injury is a probable (as distinguished from a possible) result, or the intentional doing of an act with a wanton and reckless disregard of its possible result.'

‘Such intent and knowledge of probable injury may not be inferred from the facts in every case showing an act of omission constituting negligence, for, if this were true, any set of facts sufficient to sustain a finding of negligence would likewise be sufficient to sustain a finding of willful misconduct. As has been repeatedly declared, “willful misconduct’ means something more than negligence—more, even, than gross negligence.' North Pac. S. S. Co. v. Industrial Accident Commission, 174 Cal. 500, 502, 163 P. 910; Kastel v. Stieber, 215 Cal. 37, 47, 8 P.(2d) 474.'

Running through a boulevard stop sign does not in and of itself constitute wilful misconduct. (Flannery v. Koch, supra, 103 Cal.App.2d 55, 228 P.2d 580; Mish v. Brockus, supra, 97 Cal.App.2d 770, 218 P.2d 849; Winn v. Ferguson, supra, 132 Cal.App.2d 539, 282 P.2d 515.) (See also Porter v. Hofman, supra, 12 Cal.2d 445, 448, 85 P.2d 447; Gillespie v. Rawlings, supra, 49 Cal.2d 359, 317 P.2d 601; Stewart v. Kelly, supra, 68 Cal.App.2d 122, 126, 155 P.2d 850; Olson v. Jones, supra, 172 Cal.App.2d 539, 546, 342 P.2d 440.)

Similarly, merely exceeding a speed limit or doing something else which is forbidden by statute does not ipso facto warrant a finding of wilful misconduct. (Robertson v. Brown, 37 Cal.App.2d 189, 193–194, 99 P.2d 288; Katz v. Kuppin, supra, 44 Cal.App.2d 406, 408, 112 P.2d 681; McCann v. Hoffman, supra, 9 Cal.2d 279, 281, 70 P.2d 909.)

All of the facts surrounding the happening of the accident and the action of the person charged with wilful misconduct must be weighed, and the essential implied finding from proven facts must be that the person charged intended actually to harm another or to do an act with a positive, active and absolute disregard of its consequences. The intention referred to relates not to the doing of the act itself, but to the wilfulness of the misconduct, and the misconduct must be ‘the intentional doing of something either with a knowledge that serious injury is a probable (as distinguished from a possible) result, or the intentional doing of an act with a wanton and reckless disregard of its possible result.’ (Meek v. Fowler, supra, 3 Cal.2d 420, 426, 45 P.2d 194, 198.)

While Menezes was driving at a speed slightly in excess of the prima facie limit on a country road which he had never traveled before, the excessive speed was not in itself necessarily negligent. Whether or not it was negligent depended upon all of the surrounding circumstances. It is not claimed by Mrs. Goncalves that the driver intended to harm the decedent or his other guests; the occupants of the car were all close friends, and relatives. And their mission, the return from attendance at a funeral, is not normally conducive to wantonness. No comment or protest was made by any of the guests as to the manner in which the car had been driven from the funeral. It seems to us from a careful consideration of the evidence, including all legitimate inferences, that it cannot be concluded that the driver had knowledge that serious injury would be a probable result of his acts or omissions or that he was in any sense ‘wanton’ or that he proceeded with ‘reckless disregard of the possible result.’

It nowhere appears, expressly or by legitimate inference, that Menezes was fully conscious of the existence or location of the stop sign, even though he was warned that there was a stop sign ahead, until too late to act effectively. If he was traveling as estimated by the witness Deniz at a speed of 60 miles per hour, the driver had only a little over two seconds after the warning within which to act. While he was told that there was a stop sign and in the exercise of due care he should have seen it, the mere fact that he did not act sooner, in our opinion, does not furnish the basis for an inference by the jury that he was guilty of wilful misconduct. At most, Menezes was guilty of gross negligence.

We again call attention to the case of Flannery v. Koch, supra, 103 Cal.App.2d 55, 58, 228 P.2d 580, which holds that the mere warning by a guest that there is a stop sign ahead does not necessarily establish wilful misconduct on the part of the operator.

We hold that the evidence was insufficient to justify the verdict against Joe Menezes (Gillespie v. Rawlings, supra, 49 Cal.2d 359, 367–368, 317 P.2d 601; Olson v. Jones supra, 172 Cal.App.2d 539, 342 P.2d 440; Mish v. Brockus, supra, 97 Cal.App.2d 770, 218 P.2d 849; Fiske v. Wilkie, 67 Cal.App.2d 440, 154 P.2d 725; Flannery v. Koch, supra, 103 Cal.App.2d 55, 228 P.2d 580) and that his motion for judgment notwithstanding the verdict should have been granted.

The judgment is affirmed as to Los Banos Mining Company and Marjorie J. Buffuna (Sanchez), respondents to recover costs on appeal, and reversed as to the appellant Joe Menezes with directions to the trial court to enter a judgment notwithstanding the verdict in his favor, said appellant to recover costs on appeal.

CONLEY, Presiding Justice.

BROWN and STONE, JJ., concur.

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