HINER v. OLSON (1937)

On petition for rehearing of this case, the opinion which appears in (Cal.App.) 72 P.2d 890, is modified by striking out the word “business” appearing in line 28 from the top of page 892 thereof.

The appellants challenge our statement of facts that Olson, who was involved in the accident at Merced, was identified as the same D. A. Olson who was employed as traveling salesman for the appellants; that certain drug firms in Modesto were their regular customers; that Olson was engaged in selling drugs in the San Joaquin district just prior to the accident; or that he was then returning to his home at Fresno for the week end. Sampson, one of the appellants, testified that D. A. Olson had been their drug salesman for eight years; that he had the exclusive agency in the San Joaquin and Sacramento Valleys; that he averaged about 22 days each month canvassing his district outside of his home city of Fresno; and that they allowed him on that basis $5 per day in lieu of hotel expenses each day he spent away from his home city. We assume he was on his way to Fresno to spend the week–end because that was his home. He had been in the upper portion of the San Joaquin district and was on his way to Fresno when the accident occurred on the afternoon of October 19, 1934. The calendar shows that day was Friday. A court will take judicial notice of the day of the week from the date as shown by the calendar.

The record shows Sampson knew they had two drug customers at Merced. Regarding the Maze Drug Store at Merced, he testified:

“Q. Do you know whether there was an account there [at the Maze Drug Store] that Mr. Olson called upon from time to time? A. Yes, he called upon them from time to time. * * *

“Q. You know the Valley Drug Store at Merced and their account? A. Yes sir.

“Q. Mr. Olson called upon them, did he not? A. Yes sir.”

The identity of Olson who was involved in the accident as the salesman who worked for the appellants is conclusively established. At the time of the accident he handed his card to Mr. Bunnell. It contained the name of Olson. Bunnell also wrote the number of Olson's automobile on that card and handed it to Mrs. Irma Keil, the plaintiff's daughter. Mrs. Keil testified: “Mr. Bunnell asked him his name and he said he was D. A. Olson of Fresno, that he was employed by a drug company.” Hubbard, a traffic officer, ascertained from the state motor vehicle department that Olson's automobile number 4 L 5526 belonged to David A. Olson of Fresno. The character of the car was identical. It was a Buick. The residence was the same. Hubbard also got his name from letters which Olson carried in his pocket and from his driver's license. Other evidence confirms the identity of Olson as the same man who worked for the appellants. We have no doubt of that fact. The identity of persons from the identity of their names is presumed. Section 1963, subd. 25, Code Civ. Proc.

With the modification of the opinion above suggested, the petition for a rehearing is denied.

PER CURIAM.