BLANK v. COFFIN ET AL (1941)

This is an action to recover damages for personal injuries sustained in a collision between two automobiles. At the time of the accident the plaintiff, Mrs. Carol Blank, was riding as a guest in a car owned and driven by Lester F. Kain; and she brought the action against Ian Coffin, the driver, and the Mercantile Acceptance Corporation of California, the owner of the other car. The defendant owner moved in its behalf for a directed verdict and the motion was granted. Thereafter the jury returned a verdict against Coffin for $7,500, and this appeal was taken by plaintiff from the judgment entered in favor of the owner pursuant to the directed verdict.

The collision occurred a few minutes before four o'clock on a Sunday morning, on Webster street in Alameda, about 600 feet south of the southerly entrance to the Posey Tube, connecting Alameda and Oakland. Coffin was driving a Chevrolet coupe northerly toward the entrance to the tube, and was accompanied by a friend named Chamberlain. The Kain car was a two–door Chevrolet sedan, and was travelling southerly, having just emerged from the tube. It was occupied by nine persons. Kain, his wife, and Emory Jacobsen were riding in the front seat, and Mr. and Mrs. Langlands, the appellant Mrs. Blank, Mrs. Betty Hurley, Harry Haldeman, and a Mr. Lund, in the tonneau. There are two traffic lanes through the tube, which upon leaving the tube branch into four lanes; and both cars were travelling at an estimated speed of thirty to thirty–five miles an hour. The evidence shows that Coffin's car struck Kain's on the right hand side, between the hood and the door. Kain claimed that as the Coffin car approached his, the Coffin car first swerved to the left, clear across the highway, then back again to the right. The tube is well lighted, and motorists, while passing through it, are required to drive with their lights turned off; and Coffin claimed that he was travelling along the inner lane; that Kain did not turn on his lights upon emerging from the tube, but delayed doing so until the cars were within 100 feet of each other and that as he turned them on, he swerved over the middle line to the left, in front of his, Coffin's car; that, being blinded by the lights, he hit Kain's car on the right side. As the result of the impact Mrs. Kain and Jacobsen were killed, and all of the others in both cars, except Haldeman and Mrs. Hurley, were injured, some, including Mrs. Blank, more severely than others.

At the time of the accident Coffin and Chamberlain were proceeding to their homes in Berkeley. They had been attending a social affair in Alameda given by a sorority, and after having driven their young lady companions home, they started for their residences in Berkeley. The evidence shows that during the evening Coffin had taken but one drink of intoxicating liquor, and Chamberlain admitted having taken four or five; and later during the evening they were served with a buffet supper and coffee. Kain was employed as bartender at the Riptide Hotel in Alameda. He went off duty at two o'clock that morning, and shortly afterwards drove his wife, Mr. and Mrs. Langlands, and Jacobsen to a Chinese restaurant in Oakland. There they were joined by Mrs. Hurley, Mrs. Blank, Haldeman and Lund, and after they had finished dining, all entered Kain's car and started to drive back to the Riptide Hotel. Some of them lived at the hotel, and others nearby. Several of the Kain party had taken intoxicating drinks during the evening, but Kain testified that he drank nothing intoxicating that night, and there is no evidence showing otherwise.

It appears from the allegations of the complaint that appellant sought to charge respondent with liability for the accident on two theories, the first being that Coffin was employed by respondent and at the time of the accident was “acting within the course and scope of said employment with and for the business” of respondent; and secondly, that the automobile was being driven by Coffin “by and with the consent and permission” of respondent. In her briefs, however, appellant states that the only issue is that of permissive use; and that she makes no contention that Coffin was on the business of his employer. The question presented by the appeal is, therefore, whether the trial court was justified in holding as a matter of law that the evidence introduced by respondent dispelled the inference of permissive use arising from the fact of ownership; and after having examined the evidence bearing on that issue, and the contentions made by appellant regarding the same, it is our conclusion that no ground for reversal has been shown.

The main facts relating to that issue, as established by the evidence, were these: Respondent was engaged in the business of financing automobile loans, and maintained a branch office in Oakland. It was in charge of a manager named Stuperich, and about three months prior to the accident Stuperich hired Coffin as “field man”, whose duties consisted chiefly of examining, checking, and repossessing automobiles. His territory embraced much of the San Francisco Bay area, and in order to perform his duties he was assigned the use of a company car, which he garaged at his home. He had no fixed hours of employment, and was through with his work about seven or eight o'clock in the evening. He never worked Sundays. On the Saturday preceding the accident he finished his work about 4 p. m. and had no further duties to perform until the following Monday morning. At the time Stuperich hired Coffin he carefully instructed him, not only as to the nature of his duties, but also as to the restricted use of the company's car. In this regard Stuperich testified that he told Coffin he was “never to use the car for pleasure or personal uses”, but only in connection with the company's business; and Coffin testified to the same effect. Also at the same time Stuperich furnished Coffin with a mimeographed manual of instructions, which he explained to Coffin in detail. Among the instructions contained therein relating to the use and care of the company's automobiles were the following: “Each field man or collector will be supplied with a company owned car. The employee to whom the car is assigned must see that it is kept in excellent condition at all times at a minimum expense. Please note the following instructions: * * * The company does not allow employees operating company cars to pick up riders or carry passengers unless they are employed by the company. * * * Purchase only standard grades of motor oil and gasoline and always get a paid receipt. * * * Company owned cars must not be used by employees on their vacations.” In violation of the oral and written instructions so given, Coffin on several occasions used the company's car for his own pleasure, but he carefully concealed having done so from his employer, and there is not the slightest evidence from which the inference may be drawn, nor does appellant contend that Coffin's employer ever learned of his having done so except on one occasion; and upon that occasion Stuperich severely reprimanded him for having done so, told him he would be discharged if he did it again; furthermore, as a punishment for such violation Coffin was laid off his job for a week or more during which period the company's car was assigned to the use of another field man. This took place within the month immediately preceding the accident. All of the foregoing facts were established by the testimony of Stuperich and Coffin, and the testimony so given by them is clear, positive, and uncontradicted; and that being so, the trial court's ruling is fully supported by the decisions rendered in the following cases: Crouch v. Gilmore Oil Co., Ltd., 5 Cal.2d 330, 54 P.2d 709; Maupin v. Solomon, 41 Cal.App. 323, 183 P. 198; Fahey v. Madden, 56 Cal.App. 593, 206 P. 128; Bourne v. Northern Counties T. Ins. Co., 4 Cal.App.2d 69, 40 P.2d 583; Brown v. Chevrolet Motor Co., 39 Cal.App. 738, 179 P. 697; Martinelli v. Bond, 42 Cal.App. 209, 183 P. 461; Rock v. Orlando, 100 Cal.App. 498, 280 P. 377; Hammel v. Keehn, 18 Cal.App.2d 387, 63 P.2d 1165; McCammon v. Edmunds, 114 Cal.App. 36, 299 P. 551; Hanchett v. Wiseley, 107 Cal.App. 230, 290 P. 311; Engstrom v. Auburn Automobile Sales Corp., 11 Cal.2d 64, 77 P.2d 1059.

Appellant concedes that the testimony so given by Stuperich and Coffin was clear, positive, and uncontradicted, but it is contended that said testimony and the additional evidence introduced by respondent to repel the inference of permissive use, was open to doubt, and weakened by contradictions and improbabilities, and that therefore the trial court was without power to grant respondent's motion for a directed verdict. Such a doubt must, however, be reasonable, and arise from the evidence in the case, for the law does not recognize doubts that are fanciful or imaginary; and the contradictions and improbabilities must be of substantial character. In granting the motion for directed verdict the trial court held in effect that the points relied upon by appellant did not measure up to the foregoing legal standards. The record fully supports the trial court's conclusion. One of the contentions made by appellant is that since the manual of instructions contained no provision specifically prohibiting employees from using company cars for their own pleasure, an inference arises from the omission that such personal use was permitted. But in advancing this contention appellant entirely disregards the clear, positive and uncontradicted testimony of the two witnesses that at the time Coffin was employed he was instructed that under no circumstances were employees permitted to use company cars for their pleasure or personal use, that on the one occasion when it was discovered that he had violated that rule he was severely reprimanded, suspended from duty for a week or more, and deprived of the custody of the car during the period of suspension; also the rule embodied in the manual expressly and definitely prohibiting employees from carrying passengers unless they were employed by the company. Appellant points to a variance between the testimony of Stuperich and Coffin as to just when and how Stuperich discovered that Coffin had used the car for his own personal use. The undisputed fact remains, however, that such discovery was made, and that as a result thereof Coffin was reprimanded for such violation and threatened with dismissal if he repeated the violation, all of which is corroborated by the further fact that he was penalized therefor by a suspension from work.

Respondent's employees to whom cars were assigned were obliged to turn in weekly reports showing the total mileage travelled and the amount of gasoline and oil consumed for which reimbursement was sought by the employe. They were not required to set forth in said reports where or between which points the car had been driven, and Coffin carefully avoided making any charge against the company for gasoline and oil which he might have consumed for his own pleasure. Appellant argues in effect that nevertheless it would have been feasible for the company to have ascertained the number of miles per gallon of gasoline the coupe made and then to have checked the total mileage as shown by the weekly report with the number of gallons of gasoline charged against the company and that if it had done so it could have discovered that Coffin was using the car for some purpose other than in the company's business. But admittedly this was not done; and no such discovery was made; nor has appellant called attention to any statutory or judicial rule requiring an employer, in order to protect himself from liability in cases of this type, to adopt or carry on any minute checking system of the kind here suggested. Therefore, since admittedly no such discovery was made, there is nothing upon which to base an inference of permissive use.

Appellant also calls attention to the fact that the testimony given by Coffin as to the circumstances attending the happening of the accident was contradictory to that given by Kain, and that the jury in returning a verdict against Coffin must necessarily have disbelieved his testimony. Appellant has cited no authority, however, from within or without this jurisdiction, indicating that contradictions in the testimony relating to the happening of the accident are such contradictions as will defeat the right of an owner to a directed verdict based entirely upon the issue of permissive use. And obviously, to hold that they are controlling factors would operate not only to deprive an owner, in practically all cases, of the legal right to move for a directed verdict on the ground mentioned, but also to abolish the right of the trial court to entertain and grant such a motion, for it is a matter of common knowledge that rarely, if ever, is there a case tried before a jury involving a collision between two automobiles which does not present a conflict in the testimony between the two drivers as to the speed, movement or operation of their respective cars. Moreover, if such were the rule governing owners whose liability is limited, it would apply necessarily with equal force to cases where the relationship of principal and agent or master and servant exists between the defendant owner and the driver, wherein the liability is unlimited.

It is likewise obvious that where as here the owner's motion for directed verdict is granted upon the issue of permissive use, the effect of the verdict subsequently rendered against the driver which involves only the issues of negligence, proximate cause and measure of damages, cannot be considered in determining the correctness of the trial court's ruling, for it must be borne in mind that the motion for directed verdict is made and ruled upon prior to the submission of the cause to the jury on the remaining issues in the case. In this regard the situation here is wholly different from the one presented in Bushnell v. Yoshika Tashiro, 115 Cal.App. 563, 2 P.2d 550, which is strongly relied upon by appellant, for there the trial court denied the motion for directed verdict; and that being so, on appeal, the effect of the jury's verdict, which was against the defendants, was a matter that could be properly considered in support of the conclusion reached by the jury on all factual issues, including the one of permissive use.

The remaining points made by appellant in furtherance of her contention that the testimony introduced by respondent is legally insufficient to dispel the inference of permissive use are not of sufficient importance to call for discussion. Nor do we deem any of the cases cited by appellant controlling for the reason that they involve facts essentially different from those here presented. For example, in the case of Bushnell v. Yoshika Tashiro, supra, while the driver of the truck testified that he had not obtained permission to drive the same on the particular Sunday on which the accident happened, the evidence showed that during the four years of his employment the owner had customarily allowed him to use the truck on Sundays for his own pleasure, and the driver testified that the only reason he did not obtain permission on this single occasion was that he believed the owner was in church. Here all of the testimony given in the case on that subject was that under no circumstances and at no time was Coffin allowed to use the car for his own pleasure.

Coffin resumed his employment with the respondent company about two months subsequent to the accident, and it appears that thereafter he was required to attend court on a criminal charge, evidently growing out of the accident; and appellant sought to show that in attending the sessions of court he drove one of the company's cars with its permission. There was no error in the trial court's ruling excluding the testimony, especially in view of the fact that appellant made no offer to show that the conditions of the employment subsequent to the accident were the same as they were before.

In a supplemental brief appellant urges a new point. It is based on the decision rendered by the District Court of Appeal, Second District, Division Two, in the recent case of Lanfried v. Bosworth, Cal.App., 114 P.2d 406, wherein it appears to be held, among other things, that the disputable presumptions enumerated in section 1963 of the Code of Civil Procedure to the effect that a person is innocent of crime or wrong, and that the law has been obeyed, apply in cases such as this which are brought on the theory of implied permissive use of automobiles. The authority given for the application of such presumptions is section 503 of the Vehicle Code, St.1935, p. 174, which reads in part: “Any person who drives or takes a vehicle not his own, without the consent of the owner thereof and in the absence of the owner, and with intent to either permanently or temporarily deprive the owner thereof of his title to or possession of such vehicle, whether with or without intent to steal the same * * * is guilty of a felony.” (Italics ours.) Appellant argues therefore that as held in Smellie v. Southern Pacific Co., 212 Cal. 540, 299 P. 529, 534, “* * * when the rules applicable to nonsuit and directed verdict come into operation, and we have a showing on behalf of the plaintiff of the facts and circumstances of the case and the presumption relied upon, on the one hand, and the evidence offered on behalf of the defendant, the evidence produced by the defendant and favorable to his cause is eliminated from consideration for the purpose of the ruling of the court”. There are several reasons, however, why that portion of the decision in Lanfried v. Bosworth, supra, upon which appellant relies, is not here controlling. In the first place, as will be noted, in order to establish the offense declared by said vehicle code section it must be shown not only that the vehicle was taken and driven, but that it was taken and driven “with intent to either permanently or temporarily deprive the owner thereof of his title to or possession of such vehicle”; and here admittedly there was no intent at any time to deprive respondent of the title to the car; and at all times it was in the lawful possession of Coffin. In this connection it may be here stated that the case of People v. Cuevas, 18 Cal.App.2d 151, 63 P.2d 311, cited by appellant, is not at all in point, for there, as declared in the opinion, the car was stolen by the defendant and he kept the same in his possession for more than four years before the owner recovered it. Furthermore, that portion of the decision in the Lanfried case dealing with presumptions was unnecessary to the disposal of the appeal because as shown by the decision therein the record was entirely barren of any evidence to dispel even the inference of permissive use. Then again that portion of the decision referred to is in conflict with the well reasoned decision rendered in Bradford v. Sargent, 135 Cal.App. 324, 27 P.2d 93, on the same point. It is also to be noted that the Bradford case is not cited in the Lanfried decision; but it has been cited approvingly in several other cases.

At the time the appeal was argued appellant apparently took the position that in no case of this type should the trial court have the right to grant a motion for directed verdict where the evidence dispelling the inference of permissive use, however strong, clear, positive and uncontradicted it might be, consisted alone of the testimony of the owner of the car or the driver or both; that such dispelling evidence must be furnished by other witnesses or at least be corroborated by independent facts established by other witnesses. The basic ground for appellant's position seems to be that the owner and driver are interested parties. No sound reason has been offered, however, why on motion for directed verdict in a case of this kind the testimony of an interested party should by judicial doctrine be arbitrarily rejected or even placed under the ban of suspicion, any more so than in any other class of cases. The owner is brought into court burdened with the inference of permissive use because of his ownership of the car; and that being so, the law justly affords him the right to dispel such inference by competent evidence. Ordinarily he is the only one who has knowledge of the facts sufficient to dispel such inference; and certainly because the party seeking damages from him may not be in a position to introduce testimony contradicting the dispelling evidence serves as no reason why the owner may not have his testimony considered by the trial court in support of the defense which in most cases is the only one available to him. In any event, the legal doctrine for which appellant seems to contend is not the law, nor can it be adopted without distorting the rule laid down in the Engstrom case into an incongruous shape and also without overruling or disapproving a number of previous decisions rendered by the Supreme Court and District Courts of Appeal, among them being Crouch v. Gilmore Oil Co., Ltd., supra; Maupin v. Solomon, supra; Martinelli v. Bond, supra; Rock v. Orlando, supra, wherein the only testimony in the case to dispel the inference consisted of that given by interested parties. The decisions in those cases have been followed for many years as the established law of this state, and even though this court possessed the power to repudiate them, no sufficient reason has been assigned why this should be done.

The judgment is affirmed.

I dissent.

The majority opinion holds that where the evidence is of such a nature that an inference of permissive use arises, an inference which admittedly is sufficient to establish a prima facie case, such inference is rebutted as a matter of law by the uncorroborated testimony of the employer and employee contradicting the inference. These two witnesses are the defendants in the action. They are witnesses who have a financial interest in the outcome of the case. To hold that the inference is rebutted as a matter of law under such circumstances, in my opinion, violates fundamental principles applicable to a jury trial. If the rule be as announced in the majority opinion, what becomes of the fundamental concept that the jury is the sole judge of the credibility of witnesses? What becomes of the elementary rule that the jury, under proper circumstances, may disregard uncontradicted evidence? (See annotation 8 A.L.R. 796.) The rule as announced by the majority opinion means that by merely swearing that the employee did not have permission to use the car for personal purposes, as a matter of law, the inference is rebutted. Such a rule places the plaintiff at the mercy of the defendant. As long as the defendant employer and employee are willing to swear that the employee was not given express or implied permission to use the car for personal purposes, the trial court must grant a directed verdict. The injured plaintiff, in the very nature of things, cannot directly contradict their testimony. Whether such permission was or was not granted usually rests solely in the knowledge of the employer and employee. The best that the plaintiff can do is to do what was done in this case––show that the car, from the very inception of the employment, was constantly and habitually used by the employee for personal purposes and impeach the witnesses on other matters. Yet in the face of this evidence (and the other evidence to which reference will hereafter be made), which corroborates the inference, the majority opinion holds that because two interested witnesses swore that personal use of the car was prohibited by the employer, the inference and the corroborating evidence, as a matter of law, go out of the case. Can mere swearing have this legal effect? Are all the reasonable probabilities to be thus disregarded?

In support of its conclusion the majority opinion relies on such cases as Engstrom v. Auburn Automobile Sales Corp., 11 Cal.2d 64, 77 P.2d 1059, and Maupin v. Solomon, 41 Cal.App. 323, 183 P. 198, and the other cases cited, which announce the same rule. These cases are not necessarily in conflict with the many cases holding that the jury is the sole judge of the credibility of witnesses, and that an inference is sufficient to create a conflict in the evidence. If the fundamental principles involved are kept clearly in mind the apparently irreconcilable cases are seen to be not necessarily in conflict. These fundamental concepts are three in number.

1. In the first place, the jury is the exclusive judge of the credibility of a witness. This is expressly so declared by statute. § 1847, Code of Civ.Proc.; see cases collected 27 Cal.Jur. 182, § 156. While the same section declares that a “witness is presumed to speak the truth”, it also declares that “this presumption, however, may be repelled by the manner in which he testifies, by the character of his testimony * * * or his motives, or by contradictory evidence * * *”. In passing on credibility the jury, among other things, is entitled to take into consideration the interest of the witness in the result of the case. See cases collected 27 Cal.Jur. 180, § 154, f. n. 20. Provided the jury does not act arbitrarily, the jury may reject in toto the testimony of a witness, even though that testimony be uncontradicted. Hinkle v. Southern Pacific Co., 12 Cal.2d 691, 87 P.2d 349; Barsha v. Metro–Gold–wyn–Mayer, 32 Cal.App.2d 556, 90 P.2d 371; Burke v. Bank of America, etc., Ass'n, 34 Cal.App.2d 594, 94 P.2d 58; People v. La Fleur, 42 Cal.App.2d 50, 108 P.2d 99; Van Der Veer v. Winegard, 41 Cal.App.2d 518, 107 P.2d 97; People v. Menne, 4 Cal.App.2d 91, 41 P.2d 383; cases collected 27 Cal.Jur. 184, § 156, f. ns. 3 and 4; see, also, annotation 8 A.L.R. 796. The rule is thus stated in Market Street R. Co. v. George, 116 Cal.App. 572, 576, 3 P.2d 41, 43, where there was involved the rule that upon proof of ownership of an automobile by an employer and that an employee was driving it, the inference arises that the employee was acting in the course and scope of his employment at the time of the accident, in a case where the “uncontradicted” evidence of the employee was that he was then on a personal errand: “It has always been the rule that courts and juries are not bound by mere swearing no matter how positive, unless it be credible swearing. It may bear within itself the seeds of its own destruction, as where it is inherently improbable, or its destruction may be wrought from without, as where the person swearing is in some manner impeached. In either case court and jury are entitled to disbelieve the testimony if they choose, and, if they do refuse it credence, it is of no more effect than if it had not been given. It disappears from the case and the inference opposed to it is no longer contradicted.”

It was held, therefore, that the jury could disbelieve the testimony of the employee that he was on an errand of his own. See, also, Wagnitz v. Scharetg, 89 Cal.App. 511, 265 P. 318; Perry v. A. Paladini, Inc., 89 Cal.App. 275, 264 P. 580; Poncino v. Reid–Murdoch & Co., 212 Cal. 325, 298 P. 818.

2. In the second place, an inference is evidence––indirect evidence, it is true, but, nevertheless, evidence. An inference is declared to be indirect evidence, Code of Civ.Proc. § 1957, and is partially defined by § 1958 of that Code as: “An inference is a deduction which the reason of the jury makes from the facts proved, without an express direction of law to that effect.” This partial definition is somewhat clarified by the provisions of sec. 1960 of the Code of Civil Procedure, which provides: “An inference must be founded:

“1. On a fact legally proved; and,

“2. On such a deduction from that fact as is warranted by a consideration of the usual propensities or passions of men, the particular propensities or passions of the person whose act is in question, the course of business, or the course of nature.” An inference has also been defined as “a conclusion drawn by reason from premises established by proof; a deduction or conclusion from facts or propositions known to be true.” Grand Lodge A. O. U. W. v. Miller, 8 Cal.App. 25, 28, 96 P. 22, 23, quoting Bouvier's Law Dictionary.

Whether a particular inference can be drawn from certain evidence is a question of law, but whether the inference shall be drawn, in the particular case, is a question of fact for the determination of the jury. 10 Cal.Jur. 738, § 60. They are sufficient, except in unusual circumstances, to create a conflict in the evidence. 10 Cal.Jur. 740, § 61.

3. To these well–settled rules there is a common sense limited exception which is aimed at preventing the jury from running away with the case. This exception is that the jury may not indulge in an inference when that inference is rebutted by clear, positive, uncontradicted evidence which is not subject to doubt. The jury may not believe impossibilities. When the rebutting testimony is of such a nature that it is not subject to doubt in the minds of reasonable men, when the minds of reasonable men cannot differ on the subject, then the jury is not and should not be permitted to indulge in the inference. If there is any reasonable doubt as to whether the inference as a matter of law has been rebutted, that doubt should be resolved in favor of submitting the question to the jury. To grant a directed verdict, under such circumstances, would be an interference with the proper functions of the jury. It is this exception which was applied in the Engstrom case, supra, and the other cases cited in the majority opinion. But it must be kept in mind that the rule of those cases is an exception to the general rule. The difficulty with the majority opinion is that it treats the exception as if it were the general rule, and treats the general rule as if it were the exception.

The instant case offers an excellent illustration of both the general rule and the exception thereto. It is the settled rule in this state that upon proof that an automobile is owned by an employer and was being operated by an employee at the time of an accident, an inference arises sufficient to establish a prima facie case that the automobile was being operated by the employee under the authority of the employer and within the scope of the employment. Westberg v. Willde, 14 Cal.2d 360, 94 P.2d 590; Pozzobon v. O'Donnell, 1 Cal.App.2d 151, 36 P.2d 236; Bushnell v. Yoshika Tashiro, 115 Cal.App. 563, 2 P.2d 550; McWhirter v. Fuller, 35 Cal.App. 288, 170 P. 417; Brown v. Chevrolet Motor Co., 39 Cal.App. 738, 179 P. 697; Wagnitz v. Scharetg, supra. This is, in reality, a double inference. Upon proof of ownership in the employer, and that the person driving is an employee, the first and broadest inference is that the employee was acting within the scope of his employment. Included within that inference is the more limited inference that the employee, at the time of the accident, was driving with the permission of the employer. The distinction between the two is that the first inference would support an unlimited judgment against the employer, while the second would support a verdict only up to $5,000, as provided by § 402 of the Vehicle Code.

In the present case, upon proof that Coffin was employed by respondent, and that the automobile was owned by it, both inferences arose. However, clear, positive and uncontradicted evidence which was not open to doubt was introduced by both plaintiff and defendants that demonstrated that the accident occurred at 4 A. M. in the morning while Coffin was returning home after attending a party in no way connected with his employment. That evidence did not depend solely on the credibility of Coffin. It was corroborated by many non–interested witnesses. It was of such a nature that no other conclusion was reasonably possible but that Coffin was not acting within the scope of his employment when the accident occurred. The inference that he was so acting, therefore, was rebutted, as a matter of law, under the exception to the general rule announced in the Engstrom and other cases cited in the majority opinion. Appellant concedes that this is so. But the same cannot be said as to the inference of permissive use. It is true that both Coffin and Stuperich testified that at the time of the employment Stuperich told Coffin he was not to use the car for personal purposes. Both also testified as to the Santa Cruz incident recounted in the majority opinion. There is no corroboration of their testimony at all in these respects by any independent non–interested witness, or by any circumstance. Both were interested witnesses. Had the case gone to the jury, could not the jury, from their manner of testifying, from the fact of interest, from the reasonable probabilities, have refused to believe this testimony? If the jury had brought in a verdict for plaintiff would we have not held the jury was justified in so finding, even though there were no other factors casting doubt on the credibility of these two witnesses? That is the test that must be applied in passing on the propriety of a directed verdict. In re Estate of Flood, 217 Cal. 763, 21 P.2d 579; In re Estate of Lances, 216 Cal. 397, 14 P.2d 768. Under such circumstances, the general rule above discussed is applicable.

In the instant case, we are presented with a factual situation much stronger in favor of appellant than the facts heretofore assumed. We are not merely faced with the inference on one side and the testimony of the defendants contradicting the inference on the other. There is evidence in the record which throws sufficient doubt on the alleged uncontradicted evidence of the defendants to make the question of their credibility a jury question.

The evidence shows that at the time of the accident Coffin had been in the employ of the respondent for about three months. At the time of the employment he was assigned the automobile involved in this accident. He had the exclusive use of that car, and was permitted to keep it in his garage in Berkeley, for which he charged his employer nothing. The evidence shows that from the inception of his employment down to the very time of this accident he did use the car for his personal purposes, although there is no direct evidence that his employer knew this. He, as well as the many other employees similarly employed, was required to give the company weekly reports concerning both mileage traveled, as taken from the speedometer, and gasoline consumption. He testified that each week he reported the total mileage coverd, including mileage covered for his personal use, but that he only reported total gasoline purchased on company business; that if he used the car for personal trips, which he frequently did, he did not include within the report the gasoline purchased for such trips. The company, therefore, had in its possession the information from which it could easily have been determined that Coffin was using the car for personal purposes. Could not the jury have inferred the company had such knowledge?

The evidence also showed that at the time of his employment, Coffin, as were the other employees, was furnished with a mimeographed manual of instructions. Several pages of this book were devoted to rules governing the use of company automobiles by the employees. These rules were quite comprehensive and detailed. However, there was not one word in those rules prohibiting employees from using the cars for their personal use, except rule 7 which reads: “Company owned cars must not be used by employees on their vacations.” The evidence shows that these rules had several times been revised, but at no time did the written rules prohibit employees from using the cars for personal purposes, except that they were prohibited from using them on their vacations. From this testimony the jury could have inferred that if the company did desire that the employees should not use the cars for personal purposes (other than on vacations) it would have so provided in the rules.

The majority opinion places some reliance on rule 3 contained in the manual of instructions, which provides: “The company does not allow employees operating company cars to pick up riders or carry passengers unless they are employed by the company.” Admittedly Coffin was accompanied by a friend not employed by respondent at the time of the accident. If Coffin in fact had permission to use the car for personal purposes the mere fact he was violating rule 3, supra, would not bar the appellant, as a matter of law, from recovery against respondent. The fact that Coffin at the time of the accident was carrying a passenger in violation of the company rule might be of some relevancy if the passenger were injured and he had knowledge of the rule (Albers v. Shell Company, 104 Cal.App. 733, 286 P. 752) but such fact has no relevancy where a third person is injured. Gibbons v. Naritoka, 102 Cal.App. 669, 283 P. 845; Nord v. West Michigan Flooring Co., 238 Mich. 669, 214 N. W. 236; Wright v. Maddox, Tex.Civ.App., 288 S.W. 560.

There is another factor of some importance. When the trial court granted the motion for a directed verdict Coffin had been impeached in many respects. The witnesses for appellant had directly contradicted Coffin as to how the accident occurred. The trial judge knew that this was so. He also knew that it was for the jury to determine who was telling the truth on this issue. He also knew that if the jury should disbelieve Coffin on this issue (as it subsequently did by bringing in a substantial verdict against him), that it could disbelieve his testimony on the issue of permissive use. Section 2061, subd. 3, Code of Civil Procedure, provides: “That a witness false in one part of his testimony is to be distrusted in others.” With this conflict in Coffin's testimony, how can it be said that his testimony on the issue of permissive use was clear, positive and uncontradicted and not subject to doubt?

The same reasoning applies to the testimony of Stuperich on this issue. Not only was he impeached by the testimony concerning the mileage and gasoline reports mentioned above, from which the jury could have inferred that the company had actual knowledge of the fact that Coffin was using the car for personal purposes, but both Coffin and Stuperich testified that Stuperich discovered, prior to the accident, that Coffin had used the car to go on a week–end to Santa Cruz; and that Stuperich severely reprimanded Coffin, and told him if he ever used the car for personal purposes again he would be discharged. The stories of the two witnesses as to the circumstances under which Stuperich discovered this trip are in direct conflict. Coffin testified that some third person told Stuperich, while the latter testified that Cofin drove up in front of the company office with a girl in the car and upon questioning Coffin disclosed that he had been to Santa Cruz for a week–end. Certainly, the jury in weighing the evidence and passing on the credibility of these two witnesses could have considered this conflict. Stuperich and Coffin both testified that Stuperich severely reprimanded Coffin on this occasion and told him if he ever used the car again for personal purposes he would be fired. The record shows that thereafter Coffin continued to use the car for personal purposes and admittedly the company made no attempt to check up on Coffin's use of the car. The evidence also shows that after the present accident the company retained Coffin in its employ and did not discharge him. All of these matters are factors that the jury was entitled to consider in passing on the credibility of these two witnesses.

The respondent places its greatest reliance on the Engstrom case, supra. Even if that case be given the very broadest interpretation, it was error to grant the directed verdict in the present case. In that case the person driving the car at the time of the accident was a prospective purchaser from the Auburn Automobile Sales Corporation, the owner. The uncontradicted evidence showed that the prospective purchaser was given permission by the owner to drive the car for but two hours after 5 P.M. on the day in question. He did not return the car until 4 P.M. of the next day, the accident having occurred shortly prior thereto. The evidence also showed, without contradiction, that the owner, upon the expiration of the two–hour period, had made efforts to locate the car, and in fact had finally reported the car to the police as stolen. The plaintiff relied solely on the inference of permissive use growing out of proof of ownership of the car. The Supreme Court sustained a judgment in favor of the owner entered upon the granting of its motion for a directed verdict. It held that the inference of permissive use was rebutted as a matter of law by the testimony above–summarized. In so holding the court stated the applicable rules as follows [11 Cal.2d at page 70, 77 P.2d at page 1063]:

“On the other hand, an inference [as distinguished from a presumption] is dispelled as a matter of law when it is rebutted by clear, positive, and uncontradicted evidence which is not open to doubt, even though such evidence is produced by the opposite side. [Citing cases.] Of course, if the opposition evidence is conflicting, vague, or uncertain, or is weakened by contradictions or improbabilities, an inference is not dispelled as matter of law.” The same rule was applied in Crouch v. Gilmore Oil Co., Ltd., 5 Cal.2d 330, 54 P.2d 709; see, also, opinion of Supreme Court in denying a hearing in Maupin v. Solomon, supra.

It must be apparent, from the analysis above set forth, that the record here presented is not one where we can say, as a matter of law, that the evidence rebutting the inference is “clear, positive and uncontradicted evidence which is not open to doubt”, but rather a case where it must be held that the rebutting evidence is “conflicting, vague, or uncertain” and is “weakened by contradictions or improbabilities”, and is “open to doubt”.

It should also be mentioned that it has been held that, when a person is driving the car of another at the time of the accident, a disputable presumption, as distinguished from an inference, arises that he has permission to drive the car. Lanfried v. Bosworth, Cal.App., 114 P.2d 406. This disputable presumption is predicated upon the provisions of § 1963, sub. 1, which provides that it is presumed “that a person is innocent of crime or wrong”. The majority opinion devotes considerable space to showing that it is not a crime for a person lawfully in possession of an automobile to use it for a non–permitted purpose. I do not agree with the conclusion stated in the majority opinion that if Coffin did not have permission to use the car for personal purposes he was not guilty of a crime, but, whether it was a crime or not, is beside the point. The presumption to which reference has been made not only applies to crimes but also to a “wrong”. Certainly, Coffin was guilty of a “wrong” against his employer if he used the car for personal purposes without permission. Since this is so, if the reasoning of the Lanfried case, supra (in which the Supreme Court denied a hearing), is sound, then a disputable presumption arose that Coffin did not commit a wrong against his employer. That is tantamount to saying that a disputable presumption arose that Coffin had permission to use the car for personal purposes––otherwise, he would be committing a wrong. If such a presumption arose, then under the doctrine of Smellie v. Southern Pacific Co., 212 Cal. 540, 299 P. 529, it created a conflict in the evidence, and it was error to grant the motion for a directed verdict.

For these various reasons, and particularly for the reasons first advanced, it is my opinion that the judgment should be reversed.

KNIGHT, Justice.

WARD, J., concurred.