BURGESS ET AL v. CAHILL ET AL (1944)

The plaintiffs have appealed from a judgment rendered pursuant to a directed verdict in favor of the defendant, H. P. Garin Company, the owner of an automobile which was involved in a highway collision, as a result of which two persons were killed and others were seriously injured. No appeal was taken from the separate judgments which were rendered against the other defendants.

The plaintiffs seek a reversal of the directed judgment on the ground that the record contains substantial evidence of implied permission for Samuel A. Cahill, the employee, to operate the company machine at the time of the accident, and that the court therefore erred in taking that issue from the jury. It is also contended the court erred in unduly restricting plaintiffs' examination of witnesses for the purpose of eliciting evidence of permissive use of the vehicle.

The appeal is presented on a settled statement of facts. It appears without conflict that the defendant, H. P. Garin Company, a corporation, was engaged in a farming enterprise on Bouldin Island situated about eight miles northwest from Stockton, and elsewhere in that vicinity. The company employed Cahill in 1942, as a mechanic to keep its farming machinery in repair. Mr. and Mrs. Cahill, and their infant son, then resided at Lodi. The company provided Mr. Cahill with a Ford pickup automobile which he kept in the driveway at his home. Cahill also owned a machine of his own which he kept in a one–car garage on the same premises. The company furnished him with oil and gas for the Ford pickup machine. Printed stickers were placed by the company in its cars with the exception of the one in the possession of Cahill, prohibiting the use of the machines for private purposes. Mr. Cahill knew that fact. He repeatedly stated that he knew he had no right to use the company car for private purposes.

Sunday, January 17, 1943, at 7 o'clock P. M., Mr. and Mrs. Cahill and their son were riding in the Ford pickup on a private mission to take some plants and shrubs to the property some distance from their home to which they intended to move. On the return trip, while Mrs. Cahill was driving the machine, and her husband and child sat by her side, a collision with plaintiffs' machine occurred on the highway about one–half mile from Stockton. Two occupants of plaintiffs' automobile were killed, and others, including both Mr. and Mrs. Cahill, were injured. A suit for damages was instituted against the defendants, including the H. P. Garin Company, the owner of the machine. The cause was tried with a jury. At the close of the evidence the court instructed the jury to return a verdict in favor of the company on the ground that there was no substantial evidence showing that the Ford pickup was being operated at the time of the accident with the permission of the owner of the vehicle. The jury returned a verdict in compliance with that instruction. A judgment was rendered accordingly. From that judgment this appeal was perfected. We are not concerned with the judgments which were separately rendered against the other defendants.

The chief issue on this appeal is the question as to whether the record contains substantial evidence that the automobile of the Garin Company was being operated by Mrs. Cahill under the direction of her husband at the time of the accident, with the implied permission of the owner, so as to render it liable for imputed negligence of the driver under the provisions of Section 402 of the Vehicle Code, St.1937, p. 2353. That section reads in part:

“Every owner of a motor vehicle is liable and responsible for the death of or injury to person or property resulting from negligence in the operation of such motor vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner and the negligence of such person shall be imputed to the owner for all purposes of civil damages.” (Italics added.)

It was stipulated at the trial that the Ford pickup was not being operated at the time of the accident on any business in which the Garin Company was interested. Since the above–quoted section clearly imposes liability for imputed negligence against the owner of the vehicle whether it was being actually used at the time of the accident in its business “or otherwise” provided it was then operated with the owner's “express or implied” permission, it becomes necessary to determine whether there is any evidence, or reasonable inferences to be drawn therefrom, that the machine was being operated with the implied permission of the owner. We must assume that, since the machine was being driven by Mrs. Cahill in the presence of her husband and under his direction, her negligence may be imputed to the owner, provided Mr. Cahill had implied permission to use it for his private purposes.

It is not contended that the vehicle was then operated with the express permission of the owner. The only question to be determined is whether the conduct or declarations of the owner with respect to the use of the automobile by Samuel A. Cahill constituted implied permission for him to operate the machine for his own benefit. Permission for an employee to operate, for his own benefit, the vehicle belonging to his employer, may be inferred only when the owner has knowledge, or at least reason to believe, that it will be so used. An owner of a machine may not be deemed to have consented to the private use of his vehicle unless he has knowledge or at least reason to believe that it will be used in that manner. One may not permit an act to be performed of which he has no knowledge or information. Bradford v. Sargent, 135 Cal.App. 324, 332, 27 P.2d 93; Engstrom v. Auburn Automobile Sales Corp., 11 Cal.2d 64, 77 P.2d 1059; Howland v. Doyle, 6 Cal.App.2d 311, 44 P.2d 453. There is a clear distinction between a presumption and an inference. A presumption is created by statute. Sec. 1959, Code Civ.Proc. An inference is a conclusion founded “on a fact legally proved”, from which a reasonable deduction may be drawn. Sec. 1960, Code Civ.Proc.; Engstrom v. Auburn Automobile Sales Corp., supra. It has been held that a presumption created by law may be considered by the jury as evidence and may outweigh strong and convincing testimony to the contrary. Smellie v. Southern Pacific Co., 212 Cal. 540, 299 P. 529; People v. Chamberlain, 7 Cal.2d 257, 60 P.2d 299. An inference, however, may be dispelled and overcome as a matter of law by clear, positive and uncontradicted evidence. Maupin v. Solomon, 41 Cal.App. 323, 183 P. 198; Engstrom v. Auburn Automobile Sales Corp., supra, 11 Cal.2d at page 70, 77 P.2d at page 1063.

A directed verdict may properly be granted when there is no substantial evidence to support the material issues. In passing on a motion for a directed verdict the court must give full credit to all evidence favorable to the party against whom it is sought, together with all inferences which may be reasonably drawn therefrom, and should disregard all evidence in conflict therewith. Walters v. Bank of America, 9 Cal.2d 46, 69 P.2d 839, 110 A.L.R. 1259; Howland v. Doyle, supra; Engstrom v. Auburn Automobile Sales Corp., supra; 24 Cal.Jur. 912, secs. 162–165.

We have critically examined the record in this case and are convinced there is no substantial evidence of permissive use of the automobile at the time of the accident by the employee or his wife, and that the court was justified in directing the jury to return a verdict to that effect in favor of the respondent.

Samuel A. Cahill was furnished the automobile in question, together with necessary oil and gas, by H. P. Garin Company, his employer, with the privilege of keeping the machine at his home for his convenience in going to and coming from his work. It is true that he did use the machine on several occasions to drive to a local store for his groceries, paying for gasoline for the car on one occasion. He also used the machine for a fishing excursion on one occasion. The evidence is uncontradicted that the company had no knowledge of that personal use of the machine. Adolph Boltzen, Superintendent of Equipment for the Garin Company, testified that when he delivered the automobile to Cahill in November, 1942, he told him “that the car was to be used only on company business.” He also testified that Cahill had never requested the use of the machine for his private purpose; that he had never seen him driving the car except upon company business, and that he had never heard of his using the machine for private purposes. Walter G. Norris, the District Superintendent of the respondent company, also testified to the same facts, except as to the oral instructions given to Cahill at the time of the delivery of the machine. Mr. Cahill did not contradict those facts. When he was asked, “Did you receive any instructions [regarding the use of the car for your private purposes], oral or written?” he merely replied, “Not that I remember.” When Cahill was asked if Mr. Boltzen or Mr. Norris, who supervised his work, knew that he used the car for his private purposes, he said “I don't know whether they knew or not.” Mr. Cahill did not claim he had been expressly authorized to use the car for private purposes. His only excuse for using the machine for his own benefit was thus expressed:

“I had used my own car for H. P. Garin Company's business. I thought that it would be all right to use their car occasionally in my personal business.”

That answer does not infer permissive use of the vehicle, either express or implied. It merely declares Cahill's opinion that it would be fair for him to have the use of his employer's machine occasionally because he had sometimes used his own automobile for the benefit of the company. That is a mere expression of what Cahill thought would be just, and we are of the opinion it virtually refutes the idea of permission having been granted to use the machine for private purposes, in view of his positive assertions that he knew he had no right to use the vehicle for his private purposes.

Mr. Cahill admitted that he knew it was the general rule of the company to forbid employees to use the company cars in their possession for private use. He knew that printed stickers were placed by the company in their cars prohibiting their use for private purposes. Regarding his knowledge of that rule and of the fact that most of the company cars contained such printed stickers, Mr. Cahill said:

“A. There were notices in other cars to that effect, but I was never notified, either in writing or verbally, not to use the car for my own use.

“Q. * * * You say that there were notices in some of the other cars. Is that right? A. Most of the other cars, yes.

“Q. But there were some cars that had no such notices in them. Is that correct? A. I can't say that there were any others. * * *

“Q. And do you know who put those notices in the other cars, if you know? A. The orders were given by Walter G. Norris.”

This shows his knowledge of the general orders of the company prohibiting private use of the machines. His statement that “I was never notified, either in writing or verbally not to use the car for my own use,” merely contradicts Mr. Boltzen's assertion that he had orally instructed Cahill to that effect. We may assume he was not personally informed of the rule, but, nevertheless, he repeatedly acknowledged in his written statement and in his oral testimony that he knew he had no right to use the machine for his personal purposes. There is absolutely no evidence in the record in conflict with Cahill's acknowledgment that he knew he had no right to use the car for his own benefit. That being true, it may not be said there is any evidence to support an implied inference that he was granted permission to use the machine for his own purposes.

The evidence appears to be clear and conclusive of the fact that Mr. Cahill was not granted permission, either express or implied, to use the automobile for his own private purposes. The written statements of both Mr. and Mrs. Cahill, and their testimony at the trial leaves no doubt that they knew they were not permitted to use the Ford pickup for their own private benefit. At the trial Mr. Cahill was critically examined with relation to each material declaration of his written statement, and he confirmed them seriatim.

Each of these witnesses signed two separate statements which were received in evidence. In two of them they unequivocally declared that the Ford pickup was delivered to Mr. Cahill to be used by him “only for company business.” One of those statements was written in the handwriting of Samuel A. Cahill, and signed by him March 3rd, nearly six weeks after the accident occurred. It is not contended the statements were procured by fraud or other unfair means. In one of his statements Mr. Cahill said:

“They furnished me with a 1940 Ford Pickup which I was to use on company business only. I knew that I was not to use this car for my personal use. * * * I had never asked any of my supervisors if I could use the car for my personal use on any previous occasion as I knew that such a request was against company rules.”

With respect to Mr. Cahill's knowledge of the fact that he did not have permission, express or implied, to use the car for his personal benefit, he was sworn as a witness at the trial and specifically confirmed all such statements. The following colloquy occurred regarding the written statement of Mr. Cahill marked exhibit “C”:

“Q. * * * You wrote that in your own handwriting, didn't you? A. Yes. * * *

“Q. And at that time you told Mr. Lee the truth concerning your right to use this car, didn't you? A. I did.

“Q. And the things in this statement are true and correct, aren't they? A. I believe they are. * * * [Reading to the witness from the statement] ‘They furnished me with a 1940 Ford pickup which I was to use on company business only.’ That is true? A. Yes. ‘I knew that I was not to use this car for my personal use.’ That true? A. Yes. ‘I also knew that I had no business in allowing my wife to drive this car at any time.’ That is true? A. Yes.”

Not only is there no evidence contradicting the respondent's positive testimony that Mr. Cahill was not given permission, express or implied, to operate the automobile for his own personal use, but the written statements and testimony of Mr. and Mrs. Cahill confirm and corroborate the fact that not only was permission not given to Mr. Cahill, but he knew that the rules of the company absolutely prohibited him from using the machine for his own personal benefit. The court therefore did not err in instructing the jury to return a verdict in favor of the company on that issue.

In the case of Blank v. Coffin, 20 Cal.2d 457, 126 P.2d 868, upon which the appellant relies, a directed verdict in favor of the defendant, Mercantile Acceptance Corporation, was reversed. That case is readily distinguishable from the present suit. In that case the court properly decided that there was substantial evidence to show that Ian Coffin, the employee of the automobile financing corporation, who was driving his employer's car at the time of the casualty, was doing so with permission of the owner of the machine. At the time of the accident Coffin was taking two young women in the machine to a social function. He was not engaged in the performance of duties for which he was employed. The printed instructions from the corporation, with which he was supplied when he was hired, merely declared that “Company owned cars must not be used by the employees on their vacations.” The evidence was undisputed that Coffin was not using the machine on his vacation. The Supreme Court emphasized that fact. It held that it was the sole province of the jury to determine, under the circumstances of that case and the limited instructions which were given, whether implied permission had been granted to Mr. Coffin to use the car for his own pleasure, so long as he did not so use it on vacation expeditions. In giving its reasons for holding there was evidence of implied permission sufficient to entitle the cause to be submitted to the jury, the court said:

“The manual of instructions that he received forbade the use of the car on vacations, but did not forbid its use for [other] personal matters; the company could determine that Coffin was habitually using the car for his personal business by checking his mileage reports against his gasoline reports; Coffin was not discharged after discovery of his use of the car on a week–end trip and was allowed to resume possession of it after a short lay–off. The fact that Coffin was accompanied by a friend in violation of the rules of the company could not establish that he did not have permission to drive the car.” (Italics added.)

In the present case there is absolutely no evidence that the Garin Company knew Cahill was using its automobile for his personal benefit. Moreover, contrary to the facts of the Blank case, supra, Cahill knew the employer's rules prohibited him from operating the car for his own personal use. There is no evidence to the contrary. Cahill repeatedly admitted that fact. Those circumstances clearly distinguish the present suit from the foregoing Blank case. It is not authority for holding that the trial court erred in granting the motion for a directed verdict in this action.

In the case of Hicks v. Reis, 21 Cal.2d 654, 134 P.2d 788, upon which the appellants also rely, a judgment which was rendered against the owner of an automobile, on the theory of imputed negligence of the owner, based on implied permission for another person to operate the machine, was affirmed. That case may likewise be distinguished from the present action. Quite a different rule applies to that case. It was not a jury trial. No directed verdict was involved. Having determined on its merits that the owner of the automobile granted implied permission to his employee to operate the car, every intendment is in favor of the judgment which was accordingly rendered. The appellant, Fred W. Gray, was a dealer in second–hand automobiles. Frank Hume was his salesmanager. The defendant, John Reis, was employed as a salesman. On the occasion of the accident Reis took his employer's automobile from the sales lot where it was parked and drove it on a birthday pleasure expedition. On that trip a collision occurred and the plaintiffs were injured. Suit was brought against the appellant Gray, together with other defendants, for damages incurred as a result of negligence imputed to the owner of the car, growing out of implied permission for the employee to operate the machine for his own benefit. Judgment was recovered against all the defendants. The owner of the machine, Fred W. Gray, appealed. The judgment was affirmed. The Supreme Court said that the evidence showed that John Reis had been working for Mr. Gray three weeks before the accident occurred, and on prior occasions; that at no time had he been instructed by the appellant, by his salesmanager, Mr. Hume, or by anyone else, not to take the machines from the sales lot for his own use; that he had never been informed of any such rule; that he had no knowledge of the existence of such a rule; that he frequently took the cars from the sales lot with the knowledge of Mr. Hume, without asking permission from anyone to do so, and that he also often took the cars to drive to his lunch; “that Hume knew he took the cars for these purposes,” and never objected to that use of them.

It is true that much of the foregoing evidence in the Hicks case was contradicted at the trial. But the weight and sufficiency of the evidence and the credibility of the witnesses were solely for the determination of the trial judge. With that province a reviewing court may not interfere. The lack of knowledge on the part of the employee that he was not permitted to take the machines from the sales lot without the consent of the owner or his salesmanager, and the fact that the employee, John Reis, had frequently taken them with the knowledge of Mr. Hume justified the court in assuming that they were taken with the implied permission of the owner, and that imputed negligence would therefore render the owner liable for damages to the limited extent provided by Section 402 of the Vehicle Code.

No such absence of knowledge of the employer's rule against permissive use of the machine by an employee, or evidence of knowledge on the part of the owner that the machines were so customarily used by the employee appears in the present case. The Hicks case is therefore clearly distinguishable from the facts of this suit. We find nothing in the foregoing cases or in any of the other cases relied upon by appellants in conflict with what we have said regarding the legality of or justification for the order directing the jury to return a verdict in favor of the respondent.

Likewise, in the case of Lufkin v. Patten–Blinn Lumber Co., 15 Cal.App.2d 259, 59 P.2d 414, upon which the appellant also relies, judgment against the Lumber Company on the theory of imputed negligence growing out of implied permission to use its automobile for private purposes was affirmed. In that case there was no evidence to refute plaintiff's testimony that his use of the car was not limited by any instructions, and it does not appear the Lumber Company lacked knowledge of the fact that plaintiff was using the machine for private purposes. The Appellate Court affirmed that judgment apparently for the reason announced in Dahl v. Spotts, 128 Cal.App. 133, 16 P.2d 774, 776, that when the appellant “has it in his power to produce evidence which from its very nature must overthrow the case made against him if it is not founded on fact, and he refused to produce such evidence, the presumption arises that the evidence, if produced, would operate to his prejudice, and support the case of his adversary.”

The Lufkin case, therefore, is clearly distinguishable from the facts of this cause. It is not authority for holding that the trial court erred in granting the judgment in the present case.

The judgment which was rendered pursuant to the directed verdict in this case is valid and should be affirmed.

The court did not err in sustaining objections to plaintiffs' interrogatories on examination of Samuel A. Cahill or on cross–examination of Walter G. Norris. The questions to which objections were sustained were incompetent. They do not tend to show permissive use of the car for private purposes. They merely sought to prove that, in a conversation between Cahill and Norris after the accident occurred, Cahill was not criticised because he had used the machine for his own private purposes and that he was not discharged, but continued to work for the Garin Company for several months thereafter. Neither Cahill nor Norris was asked, nor did the plaintiffs' attorney offer to prove, that the Garin Company had knowledge before the accident occurred that the employee had previously used the car for his own benefit. If Cahill had been criticised by Mr. Norris after the accident had occurred, or had been thereafter promptly discharged, those acts would not tend to prove that the Garin Company previously knew he had been violating instructions by using the car for his own benefit. That being true, the appellants may not complain of the rulings of the court.

In support of their contention that the court committed error in sustaining objections to that testimony, the appellants rely on Hicks v. Reis, supra, and Blank v. Coffin, supra. In both of those cases there was evidence that the owners of the machines had knowledge before the accidents occurred of the fact that their employees were, contrary to instructions, using their machines for their own private benefit. Under such circumstances the reviewing courts properly said that the failure to discharge the employees, or to criticise them for violating their rules, before the accidents occurred, was some evidence tending to show implied permission to use them for their own purposes.

In the present case no such previous knowledge on the part of the respondent appears in evidence. Nor was the excluded evidence offered for that purpose.

The judgment is affirmed.

THOMPSON, Justice.

ADAMS, P. J., and PEEK, J., concur.